Submission from Body corporate for Offshore Noosa CTS 24644

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The Body Corporate’s main concerns can be summarised as:

  (a)        the architectural plans for outdoor dining are inadequate to effectively deal with
             noise impacts and breaches of residents’ right to privacy; and
  (b)        the requested hours of operation are too extensive for an accommodation building of
             this type.

In support of the Body Corporate’s concerns, we submit that the Request is both inadequate
in the way it proposes to address and protect the existing amenity of residents, and
inaccurate in its description of scheme infrastructure and existing uses relied upon by the
applicant to support the proponents planning arguments.

3.2 Request for Development Permit

The Body Corporate has identified a number of inaccuracies in the Request:

        Car Parking

        A.     The applicant seeks an increase in the proposed use area for dining by 67m2 and
               proposed extended hours of operation.

               Justification for these increases are supported by a claim that there is adequate
               provision of existing car parking infrastructure ‘on-site’. The required car parking
               calculation for a Type 1 Food & Beverage operation is 1 car park space per 10
               m2. Extrapolated for a use area of 67 m2, 7 car parking spaces will be required
               (see Table 1 on page 3).

               The scheme has no ‘on-site’ car parking available for retail shop guests as is
               claimed by the applicant. All car parking spaces in the scheme are allocated to
               owners, guests or visitors to owners and guests for their exclusive use and all car
               park areas have secure access.

               Incorrect car parking allocations should not be relied upon to support increases in
               use areas for dining nor extended hours of operation (page 4).


The Body Corporate considers the Request incomplete in its assessment of impacts:

        Noise – Assessment of external components only

        A.     The Request is incomplete due to the limited focus of the reliant Acoustics Report
               stating that the external components are ‘of most interest for this assessment’.

               A brief reference in the Request to the installation of rubber foot pads on chair
               and table legs and the noises associated with the operation of the roller doors at
               opening and closing times is the only reference to noise abatement. No attention
               is given to ways in which the proposed café / restaurant intends to address noise
               arising from the daily set up, operation and close down of the business. The Body
               Corporate knows from previous experience on this site, and from experience with
               the other café operating nearby within the resort, that there is significant
               operational noise which continually disturbs guests in the resort.

               The Body Corporate also has extensive prior experience (and current experience,
               with regard to the other café on site) with the operators of both retail premises

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           which demonstrates that despite assurances given by those operators, the daily
           operational noises referred to above are significant and do impact on the
           enjoyment of guests. The operators have not been effective in curtailing noise
           emanating from the operation of their businesses, nor in curtailing the noise
           levels of customers. This is despite assurances they have made to the Body
           Corporate from time to time.

           Further, the Report focuses on adverse noises impacting on recreational spaces
           across the road from the resort on the river foreshore, not those impacting on
           residents adjacent to, above, behind or nearby the cafe, where noises emanating
           from the operation of the café are most likely to cause disturbance. Again the
           Body Corporate knows from prior experience that operational noises from
           operation of a café do travel through the building structure, particularly to
           apartments adjacent to or above the café. Discussions with the applicant have
           indicated that the applicant is unwilling to outlay the additional costs associated
           with addressing these concerns.

           Therefore, the statement referred to in the Request suggesting:

           ‘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 proposed changes pose no adverse impacts on the surrounding properties
           and land uses’

           cannot be substantiated as the Acoustics Report was based on a very limited
           scope of analysis.


     Operation of Refrigeration and Air-Conditioning Equipment

    A.     The Request is further incomplete because the accompanying plans do not show
           where the refrigeration equipment will be located, nor where the floor wash out
           points will be located. Wash out points must be located near cool room doors to
           ensure that when wash out of refrigerated areas are undertaken, the resulting
           water can quickly drain away.

           In addition, the plans do not show where the air conditioning equipment will be
           located and where the associated motors will be. Until this information is
           provided, it is not possible to make a full assessment of the noise impacts of the
           Request.

The Body Corporate considers the Request’s proposed extended hours of operation to be
unreasonable for this scheme as lots in the scheme are almost entirely of a residential
nature:

     Proposed operational hours – unbalanced for a residential scheme

     A.    The scheme is not a mixed-use complex, but rather a residential scheme offering
           30 holiday accommodation units, with a number of internal courtyard pools,
           gardens, barbeque and recreational facilities. There are two commercial units on
           the foreshore ground level facing Gympie Terrace. Commercial Unit 3 is the more
           prominent of the two with residential ground floor apartments on either side and
           with two floors of residential apartments directly above.



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           The proposed extended hours of operation for the proposed use on page 4
           (Table 2) of the Request will mean the retail operations will start at 6.00am every
           day (at least an hour and a half earlier than the previous tenant) and close at
           10.00pm (approximately two hours later than the previous tenant). On weekends,
           the proposed closing time is not until midnight, 3 hours later than the previous
           tenant. No consideration has been given to the set up and close down time
           outside the stated hours of operation.

           The Body Corporate objects to this substantial change in hours of operation on
           two grounds:

           (a)   the proposed extended operational hours would fundamentally change the
                 character of the area from a residential precinct to a commercial one,
                 especially with the planned application for a Liquor Licence for the premise.
                 This would amount to an unbalanced and unnecessary change; and

           (b)   the commercial Unit 3 has not been designed to cater for such an intensive
                 use as an Entertainment and Dining Area. In order to maintain a balance
                 between the needs of the residents and the retail patrons, the outdoor
                 dining area would have to be totally enclosed with acoustic wing walls (as
                 proposed) and a substantial roof structure insulated to an appropriate
                 density standard. The Body Corporate has assessed that for the two
                 apartments adjoining the café on the same floor level, and for the
                 apartment immediately above the café, customers of the café are likely to
                 have direct sight access to the living and sleeping areas, thereby disturbing
                 the privacy of guests in those apartments.

           In regard to the proposed acoustic wing walls shown in the plans, it is not clear if
           the wing walls are wind rated to avoid them disintegrating during high wind
           events and thereby being potentially dangerous to adjacent lots.


3.3 Concerns in Acoustics Report

The almost certain increase in noise levels resulting from the proposed application is a major
concern of the Body Corporate, particularly as the applicant has based the Request on an
Acoustics Report which is incomplete in its assessment of impacts:

     Sources and assessment of noise

     B.    Under ‘Potential Noise Impacts’ (page 3 of 10), the report limited the scope of
           noise sources to four key areas, namely:

           (a)   vocalisations from patrons in the outdoor area;
           (b)   music;
           (c)   waste disposal; and
           (d)   general operational sounds e.g. roller doors being opened and closed,
                 sounds associated with dining such as cutlery, plates and glasses making
                 contact with each other or another hard object, chairs moving, etc.

           The Report does not consider, nor assess, other key noise sources and concerns
           relating to operational matters such as:

           (a)   increased refrigeration and machinery density;

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           (b)   staff working outside of normal operation hours, e.g. setting up prior to
                 opening and cleaning up after close;
           (c)   noises associated with the cooking process eg. Extractor fans with flues
                 that extend vertically up through residential apartments;
           (d)   ordering process, e.g. whether or not the outdoor dining is table service,
                 calling out of takeaway orders, etc;
           (e)   use of the back of the shop area near the residential bedrooms; and
           (f)   transfer of noise through the structure of the building (including ceilings) to
                 other areas.

     C.    Under ‘Existing Acoustic Environment and Noise Criteria’ (page 3 of 10), the
           report assessed the ‘background noise levels’ measured from across the street
           without taking into consideration noise levels measured from where they enter
           the apartments directly above or adjacent to the cafe.

           The Chairperson’s Statement (“Annexure C”) provides a detailed summary of
           why these extra noise sources are crucial to be considered in the development
           approval application process for a retail unit that has residential units directly
           above, adjacent and behind. The fact that these issues have not been considered
           nor assessed for adverse impacts within the Acoustics Report lowers the
           reliability of the report greatly.

The proposed extension to operation hours is also a major concern of the Body Corporate.
The Acoustics Report makes a number of statements that are either inaccurate or
exaggerated when it comes to trading hours and existing building harmony:

     Operational hours – History of noise issues

     D.    The previous tenant of Unit 3, the ‘Riva Café’, was a take-away food outlet with
           operational hours of 7.30am to 8.30pm (not the 6.00 or 6.30am claimed in the
           Acoustics Report). The scheme’s other commercial unit, the ‘Red Emperor’, is
           also a take-away food outlet with operational hours of 9am to 8pm.

           The Acoustics Report inaccurately claims that there have been no previous noise
           issues between the Body Corporate and these commercial operators. On page 9
           of 10 of the Acoustics Report, the statement that the previous tenancy operated
           without complaint is unsubstantiated and contrary to the Chairperson’s
           Statement. Likewise, the levels of patronage even at the busiest of seasons
           rarely result in the numbers quoted in the Acoustic Report.

           Further, a history of noise related issues resulted in the engagement of Bugden
           Legal in June 2016 to re-draft the scheme By-laws (prior to the Request for
           Development Permit). Strengthening the enforcement of noise and other
           behavioural issues within the scheme, particularly those emanating from the
           commercial units, was the primary driver of that engagement. To claim that the
           scheme has not experienced regular complaints regarding noise from the
           commercial operations is completely unfounded.




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3.4 Body Corporate Recommendations

Operational Hours
The Body Corporate submits a fairer compromise on the proposed extended operational
hours would be 7.30am – 9.30pm on weekdays, and 7.00am to 10.30pm on weekends and
public holidays.

Conditions of Planning Consent
The Body Corporate believes consent should be conditional on the construction of an
adequate noise containing roof structure and side walls for the 67m2 external area agreed by
the Body Corporate.




 Signed:



 Dated: 09/09/16

 Tsung Han Kevin Pai

 Solicitor for the Body corporate for Offshore Noosa CTS 24644




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Annexure A – Application Letter
Annexure B – Acoustics Report by RoadPro Acoustics
Annexure C – Body Corporate Chairperson’s Statement




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