Council Report MCU19 0066

MCU19/0066 - MATERIAL CHANGE OF USE – COMMERCIAL BUSINESS - TYPE 1 OFFICE AT 2197 DAVID LOW WAY, PEREGIAN BEACH

Document information

Author	Coordinator Planning, Patrick Murphy
Environment and Sustainable Development Department

Index	ECM/ Application/ MCU19/0066

Attachments	1.	Proposal Plans

APPLICATION DETAILS
Applicant	Sabine Freitag
Proposal	Material Change of Use - Commercial Business - Type 1 Office
Properly Made Date	20 June 2019
Information Request Date	18 July 2019
Information Response Date	16 October 2019
Decision Due Date	10 March 2020
Number of Submissions	39 properly made objections

PROPERTY DETAILS
Property Address	2197 David Low Way Peregian Beach
RP Description	Lot 625 P 93121
Land Area	501m²
Existing Use of Land	Nursery and Dwelling

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Eastern Beaches
Zone	Detached Housing
Overlays	Natural Hazard Overlay – Bushfire and Acid Sulfate Soils
Assessment Type	Impact
RECOMMENDATION
That Council note the report by the Coordinator Planning to the Ordinary Meeting dated 30 April 2020 regarding Application No. MCU19/0066 for a Development Permit for Material Change of Use - Commercial Business - Type 1 Office situated at 2197 David Low Way, Peregian Beach and:
A.	Approve the application in accordance with the following conditions:
PLANNING
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
SK0 1.2	A	Site Plan prepared by pent Archi	10/10/2019
SK0 1.3	A	Floor Plan prepared by pent Archi	10/10/2019
Nature and Extent of Approved Use
The approval allows for 32m2 of Office for the purpose of a real estate agency.
The Office (real estate) may operate 8.00am to 6.00pm, Monday to Saturday.
A maximum of 2 staff are permitted on site at any one time.
The real estate agency must be limited to sales only, no rental listings are permitted.
Car Parking
A minimum of 2 car parking spaces must be provided on the site in the area noted as Staff car parking on the approved plans.
All staff must be directed to park within the approved staff car parking area as shown on the approved plans.
The staff car parking must be made available and accessible to staff at all times while the use is operating.
All car parking areas and access driveways must be maintained exclusively for vehicle parking and manoeuvring and kept in a tidy and safe condition at all times.
Advertising Devices
Any advertising sign or device must comply with Council's policies on advertising.
B.	Find the following matters relevant to the assessment and sufficient reason to approve the application:
The site has not been used for residential purposes for a significant period of time as it obtained a building approval for a Kiosk in 1969 and planning approval for a Nursery in 1972.
The proposal will not result in additional commercial use area as it utilises part of an existing building associated with an existing lawful commercial use.
The proposed use will not result in any significant new or additional impacts on the surrounding residential amenity.
C.	Note the report is provided in accordance with Section 63(5) of the Planning Act 2016.

REPORT
PROPOSAL
The application proposes to use part of an existing building at 2197 David Low Way for the purpose of a real estate office.
It is proposed to use 32m2 for office with the remaining area to be utilised by a gift shop/coffee kiosk, storage and toilet.
The applicant advises that there will be a maximum of 2 staff and the agency will only provide for sales with no rental listings. As such, it is anticipated that there will be limited attendance of the office by clients as the majority of client interaction is undertaken within people’s homes.
The applicant has proposed that a structure to the rear of the site be utilised for staff car parking.  The structure is currently used for parking 1 vehicle with the remaining area used to store goods. The applicant proposes to re-locate the good and use the structure used to accommodate 2 staff vehicles.
The existing building is situated on the western half of the lot and is approximately 77m2.  The following images detail site and floor plans and locality plans.

Figure 1: Subject site

Figure 2: Floor Plan

Figure 3: Locality Plan

Figure 4: Locality Plan
site details
Background
The site was formerly included within the Shire of Maroochy and in April 1972 approval was issued over lots 624, 625, 902 and 896 for a nursery. Subsequently detached houses were built on lots 624 and 902. It is unknown if the nursery use operated from these lots prior to the dwelling houses being built. A copy of the original development approval is not available.
Council records also indicate that an approval was issued for a kiosk in 1969.
The following image details the lots which were subject to the original approval.

Figure 5: Lots subject to the original approval
On 30 July 2002 the Maroochy Shire Council Team Leader Development Assessment sent a letter to the property owner advising that the inclusion of an activity that includes the provision of serving tea, coffee and cake to customers of the garden centre may be considered an ancillary use. It is noted that under the current planning scheme the nursery would be defined as Retail Business Type 7 – Garden and Lifestyle Centre which would also permit an ancillary coffee shop.
In 2010 Council provided written advice to the property owner that the building in which the proposed office is located could be used for the purpose of selling nursery related products as this was considered ancillary to the nursery. An inspection of the site has confirmed that the gift shop is selling a range of items including plant pots, vases and homewares.
Therefore, the existing coffee kiosk/gift shop are considered to have either existing use rights or are ancillary to the site’s lawful use as nursery and do not require a further development approval from Council.
Site Description
The site is a rectangular shaped lot which is situated on the corner of David Low Way and Jabiru Street and serviced by access from Jabiru Street. The existing access off Jabiru Street is approximately 7.5 metres wide and provides access via to 2 separate sets of gates.  One of the gates services a dwelling which is partly situated on the subject site and partly on the adjoining lot which is in the same ownership as the subject site. Off street angled parking is located to the David Low frontage and extends beyond the southern boundary of the site. The topography is generally flat with the site area being approximately 500m2.
With regards to car parking associated with the existing nursery it is noted that 10 existing car parking spaces are situated within the road reserve adjacent to the frontage of the 3 lots known as 2197 David Low Way and currently in the same ownership. It is unclear as to when these spaces were created.

Figure 6: Car parking in the road reserve (highlighted)

Surrounding Land Uses
North: Jabiru Street and 2199 – 2201 David Low Way: comprising 15 dwellings units known as Calypso Sands Holiday Apartments.
South: Also known as 2197 David Low Way: was included in the original planning approval for the nursery land use. The site is extensively covered with built form which are in part associated with the nursery use, a dwelling and a shop known as Sheepskin and Opal World.
East: 61 Oriole Avenue: a detached house situated within close proximity of the common boundary on land with a similar size and topography to the subject site.
West: David Low Way and Noosa National Park
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.
State and Other Statutory Instruments
State Planning Policy
The Noosa Plan is generally consistent with the State Planning Policy July 2017 (SPP) and the SPP raises no further issues relevant to the proposed development.
South East Queensland (SEQ) Regional Plan
The site is located within the Urban Footprint area of the SEQ Regional Plan. The proposal is consistent with the regional policies of the SEQ Regional Plan.
Planning Regulation 2017
The proposal is for an urban activity within the Urban Footprint and is consistent with the assessment benchmarks contained in the Planning Regulation 2017 for the SEQ Region.
Statutory Instruments – Planning Scheme
The application must be assessed against the whole of the Noosa Plan to the extent the provisions are relevant to the development.
Locality Provisions
The subject site is located in the Eastern Beaches Locality and is zoned Detached Housing. The proposed use is identified as an inconsistent use with the zone and is required to follow an impact assessable application process. In relation to the proposal, the most relevant overall outcomes state:
jj) 	For Peregian Beach—
…
iii. 	a wide range of local Retail, Commercial and Entertainment and Dining Uses within the neighbourhood centre serve the immediate needs of residents and visitors of the locality;
kk) 	For the Detached Housing Zone—single detached housing prevails that maintains—
i. 	a low impact, low density development form of domestic scale;
ii. 	a high level of residential amenity and design quality;
…….
The proposed real estate office conflicts with the above overall outcomes as the proposed commercial use is not located in the Peregian Beach village and is proposed on land intended to be developed for detached housing. Despite these conflicts with the Overall Outcomes, an existing development approval for a nursery is current for the site and the site has been lawfully used for a commercial purpose for an extended period of time. Furthermore, the proposal does not require the development of any new buildings or structures as the office is accommodated within an existing building and replaces a lawfully existing commercial use which was permitted to occur in that part of the building. The proposed real estate office will also not result in any new or additional impacts to the approved use of the site for a nursery as the use is limited to sales only with a maximum of 2 staff on site. Furthermore attendance at the site by clients is anticipated to be limited as the majority of client interaction is proposed to occur in people’s residence.
Land Use & Works Provisions
The application has been assessed against applicable codes. The pertinent issues arising out of the assessment against the codes are discussed below:
Car parking
The application material submitted with the application advises that there will be a maximum of 2 staff on site, comprising one real estate agent and personal assistant. The applicant asserts the impact on car parking will be negligible as the majority of clients associated with the real estate business do not attend the office as meetings with clients are generally held at their residence. Further discussions with the applicant have also confirmed that rental listings are not included as part of the operation of the real estate agency and therefore attendance to the site will be limited to clients associated with property sales only.
The Car Parking and Driveways Code stipulates a rate for an office of 1 car space per 20m2 with a minimum of 4 spaces required. Accordingly, the proposed 32m2 of office space requires 4 car parking spaces. However, given the nature of the operation it is considered to require 4 car parking spaces for only 32m2 of use area and 2 staff. It is more appropriate to assess the car parking at a rate of 1 space per 20m2 of use area noting that this is consistent with the car parking rate under the draft planning scheme for a real estate office. On this basis 1.5 additional spaces are required for the proposed office. Based on the current planning scheme car parking rate for a nursery of 1 space per 60m2 the proposed 32m2 of office area within this building has credit for 0.5 car spaces. The submitted plans include a staff car parking area to the rear of the site with sufficient area to accommodate 2 car spaces. It is recommended that conditions be included relating to the provision and use of these car spaces to protect the surrounding residential amenity.
draft planning scheme
Under the draft Noosa Plan the site is zoned Low Density Residential which is comparable with the current zoning of the land. As such, the proposed land use remains inconsistent with the strategic intent for site.
cONSULTATION
Referral Agencies
The application was not required to be referred to any Referral Agencies.
Other Referrals
The application was forwarded to the following internal Council officers:
Development Engineer
Public Notification
The application was publicly notified for 15 business days in accordance with the Planning Act 2016. 39 properly made submissions were received, each objecting to the application 34 of the 39 submissions were made via 3 different pre-formatted templates. 1 objection was made from a property within close proximity of the site whilst 12 objections were made from an address outside of the Noosa Shire, 6 of which were outside of Queensland. The following table provides a summary and assessment of the issues raised by submitters.
Matters Raised	Comments
Commercial Use: Peregian Beach already has a commercial hub. Commercial element should not be brought into this area of Peregian Beach. Corporate business such as a real estate agency should be located within the business precinct/main shopping area or offices on David Low Way.	This site has contained commercial operations for an extended period of time, since approximately 1969. The current proposal does not propose additional commercial area as it is utilising an existing area associated with the approved nursery.
Car Parking: The proposal will result in traffic/car parking issues. The lot will be operating a nursery, real estate business, homeware/gift shop and a café with approximately 3 car spaces allocated. The applicant does not have access to 10 car spaces – only 3 are available to this lot. Post box and public phone box located to the front of the site will place demand on parking spaces in this area. The proposed 3 staff car parking spaces have and will always be used for storage and work area. Nose in car parking requires patrons to reverse out directly into the road lane which is dangerous for traffic flow and cyclists. The proposed staff car parking area is never used. The applicant proposes that all car spaces in the road reserve will provide ample parking – applicant is only entitled to 1/3 of car parks in the road reserve. Applicant’s claim that office will not result in additional visitation to the site as most people do not visit an office anymore is misleading.	The proposed use of 32m2 for the purpose of a small real estate office will not result in a significant increase in car parking demand. Notwithstanding, it is recommended that 2 car new parking spaces be provided to the rear of the site. It is noted that the existing nose in car parking to the front of the site is an historical arrangement and therefore the proposed use will not result in additional safety issues.
Signage states that homewares are for sale yet applicant’s letter states that it is a Gift Shop selling pots and potted plants.	Whilst gift shop does not form part of this application it is noted that the gift shop sells pots, potted plants and homewares. The sale of homewares material is generally included in the retail component of a nursery and raises no concern so long as this component remains a minor element.
Application makes false claims about walking to work. Claims about the applicant’s character, personal behaviour and unrelated alleged operation of an Air BnB sub-let.	Submissions relating to the personal conduct of the applicant are not valid planning grounds to refuse a development application.
Approval will create a precedent in this area	The site has an existing current approval for a nursery and the proposal does not seek to expand the site’s existing commercial operations and will not result in any new or additional impacts on the amenity of the surrounding area.
Was not aware of the zoning change from residential to business/commercial.	There has been no zoning change.
Building would not fit in with homes in the area, would not like to have to view a brick wall when walking out back of property.	The proposal does not involve the development of a new building or brick wall. The submission appears to assume that the development relates to lot 897 which abuts the common boundary with the submitter’s property. It appears that the submitter has incorrectly identified the wrong site as being the subject site.
Previous requests to change the land use on site have been rejected by Council.	There have been no previous development applications for Material Change of Use for this property other than the current approval for the nursery.
Signage on site breaches Council regulations.	The signage has been reviewed by Council’s Development Compliance Officer who has confirmed that it complies with current requirements.
Applicant makes false claims about doing no work to the property. New gates providing access from David Low Way and paving in road reserve	Internal works to the building and gates providing pedestrian access to the site do not require planning approval. It is noted that paving has been installed between the property boundary and the existing footpath.
conclusion & REASONS FOR DECISION
The application proposes a Material Change of Use for Commercial Business Type 1 – Office (real estate). The office is to be situated on land which lawfully accommodates a nursery use and which was originally approved in 1972.
The site is zoned Detached Housing therefore the proposed use conflicts with the planning scheme’s strategic intent for the site. Notwithstanding the site’s current zoning it is reasonable to support the proposed use as commercial activity has occurred on the site since approximately 1969. Furthermore the application does not propose the addition of any new buildings as the use will be accommodated within an existing building on site.  The proposed office will be used by a maximum of 2 staff with limited visitation by clients due to the client meetings generally being conducted at a client’s residence. The commercial scale of the proposed use is minor and can be accommodated on site without impacting on the surrounding area.
A number of conditions are recommended to address car parking and the nature and extent of the office use so that the use will not result in any significant new or additional impacts on the surrounding residential amenity.
Accordingly, it is recommended that the application be approved subject to conditions.

Departments/Sections Consulted:
	Chief Executive Officer		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	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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ORDINARY MEETING REPORT	30 APRIL 2020

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2197 David Low Way
Lot 625 P 93121

 

 

Area Schedule

 

 

 

 

 

 

Real Estate Office 30 sqm
Gift Shop - Coffee Kiosk | 22 sqm
Storage 40 sqm
Kitchen 3sqm
Toilet 5 sqm

 

 

 


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