Development Application For Material Change Of Use - Entertainment & Dining Business Type 1 - Food & Beverages Situated At 2 Bottlebrush Avenue, Noosa Heads - Mcu 15/0086

DEVELOPMENT APPLICATION FOR MATERIAL CHANGE OF USE - ENTERTAINMENT & DINING BUSINESS TYPE 1 - FOOD & BEVERAGES SITUATED AT 2 BOTTLEBRUSH AVENUE, NOOSA HEADS - MCU 15/0086information

Author	Coordinator Planning Assessment, Denis Wallace
Planning & Infrastructure Department

Index	ECM / Application / MCU15/0086

Attachments	Nil

APPLICATION DETAILS
Applicant	Village Bicycle
Proposal	Development Permit for Material Change of Use - Entertainment & Dining Business Type 1 - Food & Beverages
Properly Made Date	15/10/2015
Information Request Date	9/11/2015
Information Response Date	14/12/2015
Decision Due Date	11/02/2016
Number of Submissions	Not Applicable

PROPERTY DETAILS
Property Address	2 Bottlebrush Ave NOOSA HEADS  QLD  4567
RP Description	Lot 157 RP 88772
Land Area	546m2
Existing Use of Land	Office/Retail

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Noosa Heads
Zone	Business Centre
Overlays	Nil
Assessment Type	Code

RECOMMENDATION
That Council note the report by the Coordinator Planning Assessment to the Planning & Organisation Committee Meeting dated 2 February 2016 regarding Application No. MCU15/0086 for a Development Permit for Material Change of Use for Entertainment & Dining Business Type 1 – Food & Beverages situated at 2 Bottlebrush Avenue, Noosa Heads and 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 Plan
Development undertaken in accordance with this approval must generally comply with the approved plan of development. The approved plan is listed in the following table and may be further amended by these conditions.
Plan No.	Rev.	Plan/Document Name	Date
A0	-	SITE PLAN	October 2015
Nature and Extent of Approved Use
The approved use must not operate outside the hours of 5am to 12pm, with use of outdoor dining area permitted after 10pm only on Friday and Saturday nights.
Patrons in the outdoor dining area must be seated and limited to 50.
The outdoor dining areas within the site must be in accordance with those shown on the approved plan, with no more than 40m2 used at any one time.
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.
Noise
External speakers or amplified music are not permitted.
Internal amplified music must be directed away from the Bottlebrush Avenue frontage.
Refuse disposal, particularly glass bottles and the like, must be considerate of noise at all times.
Management must ensure patrons leave the premises and street frontage promptly after nightly closing time and do not mingle or otherwise cause noise nuisance to residents on Bottlebrush Avenue.
The development must be undertaken in accordance with the recommendations of the Acoustic Report prepared by ATP Consulting Engineers (Reference ATP150314-NIA-02) dated 24 June 2015 and ATP’s addendum letters dated 9 October 2015 and 10 December 2015.
The 2.6m acoustic fence recommended by the approved Acoustic Report must be erected within 3 months of this approval taking effect.  The fence must meet the construction standards required by the approved Acoustic Report.
Noise emissions from any new mechanical equipment associated with the development shall 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.
Landscaping
Dense native screening shrubs up to 3m in height must be established on the Bottlebrush Avenue side of the new acoustic fence for its full length to visually screen the fence.
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 development approval for a Material Change of Use of Premises for an Entertainment & Dining Business - Type 1 Food & Beverages at 2 Bottlebrush Avenue, Noosa Heads.  The proposal seeks to ratify the use of outdoor dining areas currently being used in front of the Village Bicycle and Bean Drop businesses.  The food and beverages business use of the existing internal tenancies can occur as-of-right, subject to self-assessable provisions under The Noosa Plan.  However, addition of new outdoor dining areas triggers a code assessable development application.

The proposed outdoor dining areas comprise:
A 40m2 L-shaped area around the front and side wall of Village Bicycle
An 18m2 area in front of Bean Drop Cafe

The applicant indicates the businesses operate during the following hours:
Bean Drop Café 5am – 2pm
Village Bicycle 2pm – 12pm

The proposal plan shows a portion of shared outdoor dining area in front of the Village Bicycle to be used at varying times, with no more than 40m2 to be used at any one time.  The proposal plan and site photographs are included as Figures 1 – 5 below.  The application is before Council due to noise concerns raised by neighbours.

Figure 1 – Proposal Plan

Figure 2 – Proposal Plan Extract

Figure 3 – Street View

Figure 4 – Village Bicycle Site Photograph

Figure 5 – Village Bicycle Outdoor Area Adjacent to Bottlebrush Ave frontage
(looking toward Noosa Drive)
site details
Background
A Town Planning Consent was issued in 1976 for the use of the site as offices (TPC 578).

The Noosa Plan allows for shops, offices and restaurants to establish within existing buildings within the Business Centre zone, subject to self assessment.  Bean Drop cafe has been operating from the site for 4 years and Village Bicycle opened in April 2014.

Discussions with the Village Bicycle owners indicate they sought verbal planning advice about the requirements for changing the use of the existing office premises to food and beverages prior to establishing but did not advise Council staff of the intention to add new outdoor dining areas.

The Village Bicycle is a licensed premises and sought changes to its liquor license through the State Office of Liquor & Gaming Regulation (OLGR) in July 2015 to allow patrons to stand and vary the amplified entertainment restrictions.  The OLGR sought Council’s advice in relation to the change and Council officers objected on the basis the use of the outdoor areas was occurring without a development permit.  The current application has been lodged in response.

The changes sought by the applicant to its liquor licence are understood to have originated from compliance action undertaken by the OLGR in response to noise complaints from an adjacent resident.  OLGR officers have since attended site on a number of occasions to monitor compliance with its liquor licence conditions, including requirements for patrons to be seated when outside and on site noise limits.  The complainant to OLGR and two other adjacent unit residents/owners have written to Council about the application asking for noise to be addressed with this application.

Site Description
The site is located on the corner of Noosa Drive and Bottlebrush Avenue in Noosa Junction and is within the Business Centre zone.  The site slopes moderately down along its Noosa Drive frontage toward the south.  The site has been developed with an existing single-storey commercial building of 3 tenancies, being Village Bicycle, Bean Drop and a Backpacker Travel Agency.

The Village Bicycle tenancy is setback 4m from the Bottlebrush Avenue frontage and approximately 3m below the existing road level.  The site has been terraced to provide a paved level area around most of the building’s frontage.

A locality and zoning plan of the site and surrounding area is shown in Figure 6 below.

Figure 6 – Locality & Zoning Plan
Surrounding Land Uses
Adjoining the site to the west along Noosa Drive are three small shop and restaurant tenancies.

Adjoining the site to the south fronting Bottlebrush Avenue is the Noosa Central professional offices.

Across the road to the east is the Nomads backpacker accommodation and the Koala Bar. The property has n 1993 approval for a Motel and Hostel including a bar and restaurant – TPC 2474.

Approximately 30m across the road to the north east are 12 townhouse units at No.1 Bottlebrush Avenue shown in Figure 6 below.  Further detached houses and units are along Bottlebrush Avenue to the southeast.

Figure 6 – Adjacent Bottlebrush Terraces Units
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 site is located in the Noosa Heads Locality and is zoned Business Centre. The proposed use is identified as a consistent use within the zone and is required to follow a code assessable application process.
Land Use & Works Provisions
The following codes which regulate land use and design are applicable to this application:
Noosa Heads 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 issues arising out of the assessment against the codes are discussed below:
Carparking and Use Areas
The Driveways and Parking Code calculates parking demand for food and beverage businesses based on net use areas, exclusive of kitchens and the like.  The proposal seeks to maintain the development’s existing net use by limiting the use of the outdoor dining area to 40m2 at any one time.  This is considered reasonable and a condition is recommended accordingly.
Noise
Noise is the critical aspect of the assessment.  The introduction of outdoor dining areas on the site introduces new noise sources with the potential to negatively impact on the amenity of existing residences in Bottlebrush Avenue.  In particular, the areas are within the line of sight of some units in the adjacent Bottlebrush Terraces at 1 Bottlebrush Avenue and noise complaints have been received from residents.  Outcome O20 of the Business Uses Code requires:
Development is designed and sited to avoid noise emissions that unreasonably diminish the amenity of the area or surrounding uses.
The Noosa Heads Locality Code similarly seeks to protect the amenity of existing residents.
The applicant engaged acoustic consultants, ATP Consulting Engineers, to assess the development’s noise impacts.  The originally submitted Noise Impact Assessment report material applied a maximum noise criteria at the nearest receiver at the Bottlebrush Terraces of Background+5dB(A) and modelled marginal compliance with this limit based on the construction of a 2.0m acoustic fence along the site’s Bottlebrush Avenue boundary.
Council planning and health officers had concerns with the potential for noise impacts under the modelled scenario and requested the applicant provided further noise assessment addressing:
More stringent noise criteria of Background + 3dB(A) after 10pm;
Use of more robust noise attenuation measures;
Consideration of relocating some parts of the outdoor dining area.
The amended acoustic assessment resulted in the following noise criteria at sensitive receivers:

The assumed evening and night-time background levels of 45dB(A) and 40dB(A) are considered reasonable and appropriate for the location.  They correlate with urban settings having some traffic and commerce noise and are supported by the ATP’s background noise recordings in the area.
ATP’s assessment notes the existing OLGR liquor licence applies the following enforceable limit:
Noise emanating from the premises including amplified and non-amplified noise and patron noise must not exceed 75dB(C), fast response, when measured approximately 3 metres from the primary source of the noise.
ATP’s assessment finds both the OLGR criteria and the sensitive receiver criteria listed above can be achieved provided the following measures are undertaken:
Erection of a 2.6m high acoustic fence constructed of ship-lapped timber, fibre cement or similar;
To ensure compliance with the day-time/evening (6am to 10pm) noise limit the instantaneous volume level in dB(A), at 3m from any of the speakers, must not exceed 80dB(A);
To ensure compliance with the night-time (10pm to 6am) noise limit the instantaneous volume level in dB(C), at 3m from any of the speakers, must not exceed 84dB(C) with bi-fold glass doors open.
No speakers or live entertainers to be located outside of the building perimeter at any-time. The speakers shall always be located along the north-eastern wall facing in the south-westerly direction.
A 2.6m fence exceeds a standard 2m fence height limit but is considered acceptable in this location, given the fence sits below the footpath, as shown below.

Figure 7 – Existing Timber Fence (Approx. 1.5m high)
Overall, the assessment of noise impacts for this development is vexed.  The site is within Noosa Junction’s Business Centre zone and is unique in having a primary frontage to Noosa Drive and a secondary frontage to Bottlebrush Avenue.  The Noosa Drive end of Noosa Junction is increasingly becoming a focal point for food and beverage businesses that add to the vitality of the area and serve an important function for both locals and tourists.  While it is desirable to see the vitality of Noosa Junction continue to increase, The Noosa Plan also seeks to protect the amenity of existing residences.  Future development of sites east along Bottlebrush Drive could potentially raise major noise conflicts for residents opposite.
The submitted noise assessments indicate reasonable noise criteria can be achieved but are based on modelled predictions and there is risk actual levels will exceed modelled levels.  Council asked the applicant to consider additional attenuation measures such as an acoustic roof and wall to better enclose the outdoor area, as well as reduced business hours but the applicant only proposed the acoustic fence and requests existing business hours be maintained.  In regard to business hours it submits:
Our current trading hours are 4pm-midnight Mon-Sat, and 12.30-midnight Sun. Our kitchen is open every night to 11.30pm.  We cater to a lot of the hospitality staff who work in Noosa that don't usually finish work until after 10pm when most other kitchens in Noosa are closed apart from McDonald's.  We have worked very hard to establish late night dining, so to lose this would be very detrimental to our business.  We feel a restriction on our trading hours would be slightly unfair considering other businesses within very close proximity are allowed to trade until midnight (and beyond).  It was always our goal to create a relaxed social environment within our community and in our short time of trading have secured a rather large local following. The majority of which are made up of local hospitality workers who know they can have an after work drink with something to eat.
Discussions with State Liquor Licencing officers indicate they consider the business location to be problematic and currently causing unacceptable levels of patron noise for adjacent residents.  They advise patron noise is pervasive late at night and difficult to contain/manage.  To date OLGR investigation and resolution of complaints about the Village Bicycle remain unresolved and OLGR is awaiting the outcome of this application.
On balance, use of the outdoor area to midnight 7 days a week in this location is not supported by Council officers because of the likely ongoing amenity impacts on residents.  Outdoor use to midnight is only recommended on Fridays and Saturdays, which is consistent with The Noosa Plan’s provisions for the Visitor Mixed Used zoned areas along Gympie Terrace and Hastings Street and provides residents with some respite.
Further noise management measures should comprise:
Construction of the 2.6m high acoustic fence to the Bottlebrush Avenue.
Planting of dense native shrubs to 3m high to screen the acoustic fence.
External speakers or amplified music are not permitted.
Internal amplified music to be directed away from the Bottlebrush Avenue frontage.
Patrons in the outdoor use area to be seated and limited to 50 (per current seating).
Conditions are included in the recommendation accordingly.

cONSULTATION
IDAS Referral Agencies
Not Applicable
Other Referrals
The application was forwarded to the following internal Council specialists:
Environmental Health Officer
Public Notification
Not Applicable

conclusion
The application is for a consistent food and beverages use within the Business Centre zone and triggers code assessment due to the addition of outdoor dining areas.  The site’s secondary frontage to Bottlebrush Avenue raises specific noise concerns and complaints about patron noise have previously been received from adjacent residents in Bottlebrush Avenue.

The noise assessment for this development is considered vexed.  Food and beverages uses add to the vitality of Noosa Junction and the area toward Noosa Drive increasingly supports restaurant and bar businesses valued by locals and tourists.  It is desirable to see the area continue to revitalise, provided new uses respect the amenity of existing residents.

The applicant’s acoustic modelling indicates the development can comply with relatively strict noise limits at the nearest residences via the construction of an acoustic fence and other measures.  However, the noise assessment is a modelled scenario only and patron noise at licensed premises is known to be difficult to control.  The current daily use of the outdoor area to midnight is not considered appropriate in this location close to adjacent residents and The Noosa Plan seeks to limit late night trading to Fridays and Saturdays in similar circumstances within the Visitor Mixed Use zone.  As such it is recommended use of the outdoor area be limited to those two nights and the following noise management measures be required:

Construction of the 2.6m high acoustic fence to the Bottlebrush Avenue.
Planting of dense native shrubs to 3m high to screen the acoustic fence.
External speakers or amplified music not permitted.
Internal amplified music to be directed away from the Bottlebrush Avenue frontage.
Patrons to be seated in the outdoor dining area and limited to 50, per current seating numbers.

The application is recommended for approval, 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
		x	Waste & Environmental Health		Revenue Services
					
x	Executive Office	x	Planning & Infrastructure		
	Community Engagement		Building & Plumbing Services		
	Customer Service		Civil Operations		
	Economic Development		Infrastructure Planning & Design		
	Governance	x	Planning & Environment		
	Human Resources		Strategic Land Use Planning		
	Sustainability				

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PLANNING & ORGANISATION COMMITTEE MEETING REPORT	2 FEBRUARY 2016

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LEGEND

 

 

 

 

 

 

 

 

 

DINING AREA
VILLAGE BICYCLE DINING
2PM 124M

TOTAL ~ 40 SOM

BEAN DROP CAFE

SAM 2PM

TOTAL - 40 SOM
KITCHEN SERVICE SPACE
VILLAGE BICYCLE

= 23 SOM

BEAN ROP CAFE
= 170M

TOTAL USABLE SERVICE SPACE
COMBINED - 40 SO. M

 

 

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DINING AREA

VILLAGE BICYCLE DINING
2PM— 12AM
TOTAL — 40 SQ.M

BEAN DROP CAFE

SAM — 2PM

TOTAL — 40 SQ.M
KITCHEN/ SERVICE SPACE
VILLAGE BICYCLE

— 23 SQ.M

BEAN DROP CAFE

— 17SQ.M

TOTAL USABLE SERVICE SPACE
COMBINED — 40 SQ. M


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Table 2.1 Noise Criteria

 

 

 

 

 

 

 

. age Criteria
Period Objective (Lacqaai)
Day Background noise level (Laso,r)? + 5dB(A) 55
(7:00am to 6:00pm) . (50 + 5)
Evening . 50
(6:00pm to 10:00pm) Background noise level (Lago,r) + 5dB(A) (45 +5)
Night - 43
(10:00pm to 7:00am) Background noise level (Lago) + 3dB(A) (40 +3)