Council Planning Report 132004.240098.7

132004.240098.7 (23798 DA) PERMISSIBLE CHANGE TO AN EXISTING DEVELOPMENT APPROVAL TO EXPAND ON THE APPROVED USE AREA ASSOCIATED TO TENANCY 3 ON THE TERRACE 3/231 GYMPIE TERRACE, NOOSAVILLE

Document information

Author	Development Planner, Wilhelm Koschade
Planning & Infrastructure Department

Index	ECM / Application / 132004.240098.7 (23798 DA)

Attachments	Nil

APPLICATION DETAILS
Applicant	Noosa Palm Tree Hotel Joint Venture
Proposal	Extension to Use Area (Outdoor Dining Area)
Properly Made Date	2 December 2016

PROPERTY DETAILS
Property Address	3/231 Gympie Terrace, Noosaville – “On The Terrace”
RP Description	Lot 4 RP 36726
Land Area	2,714m2
Existing Use of Land	Multiple Dwelling (10 Units), 2 x Restaurants & 1 x Shop

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Noosaville Locality
Zone	Visitor Mixed Use
Overlays	Natural Hazard (Acid Sulfate Soils & Flood Hazard)
Assessment Type	Change to Approval

RECOMMENDATION
That Council note the report by the Development Planner to the General Committee Meeting dated 16 January 2017 regarding Application No. 132004.240098.7 for a Permissible Change to an Existing Development Approval for the expansion of the use area of Tenancy 3 situated at 3/231 Gympie Terrace Noosaville and approve the application in accordance with the following:
A.	Amend Condition 1 to read as follows:
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
May 2016
1.1	-	Floor Plan, drawn by And + Design	May, 2016
November 2005
2.0903.0D	-	North Elevation, drawn by Andrew Mckellar Design	16/11/2005
2.0903.1D	-	Ground Floor Plan 1, drawn by Andrew Mckellar Design	16/11/2005
2.0903.2D	-	Ground Floor Plan 2, drawn by Andrew Mckellar Design	16/11/2005
2.0903.3D	-	First Floor Plan 1, drawn by Andrew Mckellar Design	16/11/2005
2.0903.4D	-	First Floor Plan 2, drawn by Andrew Mckellar Design	16/11/2005
2.903.5D	-	Roof Plan, drawn by Andrew Mckellar Design	16/11/2005
2.903.6D	-	Block A, drawn by Andrew Mckellar Design	16/11/2005
2.903.7D	-	Block B, drawn by Andrew Mckellar Design	16/11/2005
2.903.8D	-	Cross Section Block A & B, drawn by Andrew Mckellar Design	16/11/2005
2.903.9D	-	Long Section Block A, drawn by Andrew Mckellar Design	16/11/2005
2.903.10D	-	Long Section Block B, drawn by Andrew Mckellar Design	16/11/2005
B.	Include an additional condition to read as follows:
Additional condition
The proposed portable cooking bench and associated 4.8m2 of use area must be located wholly within the title of tenancy 3 or the designated exclusive use area of tenancy 3.

REPORT
PROPOSAL
The application seeks approval to expand on the existing 10m2 outdoor dining area of Tenancy 3 to have a combined total outdoor dining area of 19.84m2. The expansion to the dining area is sought to enable the use of a portable outdoor kitchen bench to host cooking classes in addition to the installation of two timber benches to provide customers with a more casual dining area with direct outlook onto Gympie Terrace.
The cooking classes are to remain ancillary and subordinate to the restaurant use and are proposed to be held:
10:30 am and 12:30 pm – 3 days a week; and
4:30 pm and 6:30 pm – 4 days a week.
The cooking classes are intended to be low key with the change enabling the restaurant to provide an alternative dining experience with chef’s demonstrating food preparation and cooking techniques with sampling offered to attendees.
A floor plan depicting the proposed expanded use area is provided below in Figure 1.

Figure 1 – Proposed Outdoor Dining Area
site details
Body Corporate Consent
Prior to Council deeming the permissible change application as ‘properly made’, body corporate consent is required where the proposed expansion to the outdoor dining area of tenancy 3 is over common property. While it is not a Council requirement for any dining area of tenancy 3 to be wholly within its associated exclusive use area, any request to utilise common property which is materially changing must be accompanied with body corporate consent prior Council assessing or deciding the request.
Prior to submitting the permissible change application seeking approval for an expansion to the use area of tenancy 3, body corporate consent was sought to utilise common property, however no consent was granted. The matter was appealed and resolved through the Department of Justice and Attorney-General and an Adjudicator’s Order was issued overturning the body corporate’s refusal.
Following the resolution, the permissible change application was lodged with Council on 20 October 2016 accompanied by the Adjudicator’s Order. However, the Adjudicator’s Order only related to the proposed timber bench area and not the cooking bench with an associated 4.8m2 of use area.
The proposal plans are unclear in this respect as the exclusive use plans have no dimensions included. The applicant advised that the proposed cooking bench is wholly located within the registered exclusive use area for tenancy 3 and provided a preliminary plan indicating similarly. Consequently, the applicant has confirmed that they will accept a condition for the proposed additional use area to be fully located within the approved exclusive use area of tenancy 3.
Site Description
The subject site comprises a three storey mixed use development which includes 10 residential units with a commercial precinct at ground floor to the sites frontage along Gympie Terrace. A locality plan is provided below in Figure 2. The commercial component of the development comprises two entertainment and dining uses at Tenancy 1 (‘Raw Energy’) and 3 (‘Fresh’) and a shop at Tenancy 2 (‘Get Shoes’).
Vehicular access to the development is off Elizabeth Street to the rear of the site with pedestrian access provided directly off Gympie Terrace to the commercial precinct.
Subject Site
Subject Site
Figure 2 – Locality Plan
Surrounding Land Uses
A multi residential and visitor accommodation development (‘Regatta’) adjoins the site to the west and a mixed use development comprising a multi residential and commercial precinct abuts the site to the east (‘Riverside Noosa’).
Land uses within the general vicinity along Gympie Terrace comprise mixed use developments which generally include multiple dwellings, visitor accommodation, entertainment and dining and commercial uses.
STATUTORY PROCESS:
The applicant has requested to make a change to a development approval under s369 of the Sustainable Planning Act 2009.  A request to change a development approval under s369 can only be made in circumstances where that change would constitute a ‘permissible change’.
The proposed change to the development approval requested by the applicant is determined to constitute a permissible change on grounds that:
The change would not result in a substantially different development as the application seeks approval for the minor expansion to the use area of tenancy 3;
The change would not require the application to be referred to additional concurrence agencies;
The original application was impact assessable and the proposed changes would not likely cause a person to make a properly made submission because the request is minor and associated to an expansion to the existing use area of tenancy 3;
The change would not cause the approval to involve prohibited development.
On this basis, the applicant has followed lawful process in making a request under s369 of the Act.
assessment
Statutory Instruments – Planning Scheme
The subject site is located in the Noosaville Locality and is zoned Visitor Mixed Use. The proposed permissible change requires assessment against the planning instruments or law in force at the time the request for the change is made apply. The applicable planning scheme codes include:
Locality Provisions
Noosaville Locality Code
Land Use & Works Provisions
The following codes which regulate land use and design are most applicable to this application:
Residential Uses Code;
Engineering Works Code; and
Landscaping Code.
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
The layout of tenancy 3 comprises both internal and external dining areas (use area) with the tenancy having an associated carparking credit equivalent to 3 spaces.
The internal use area was facilitated as part of the original approval and associated car parks provided however the external use area was addressed as part of a previous change approval where the total Gross Floor Area (GFA) of the as built development was less to that of which was approved.
The application seeks approval to expand on the external use area of tenancy 3 from 10m2 to a combined total outdoor dining area of 19.84m2. Probable Solution S7.1 of the Driveways and Carparking Code requires a carparking rate equivalent to 1 space per 10m2 of use area in the Visitor Mixed Use zone. Based on the rate, an increase of 9.84m2 of use area requires one additional carpark to be provided onsite.
The applicant acknowledges that the development has exhausted carparking credits over the site and there is insufficient area to introduce additional carparking in order to facilitate the increase in use area. However, the applicant submits that when the site was originally approved in 2005, no recognition was given by Council with regards to the removal of a crossover from Gympie Terrace and Elizabeth Street which enabled two additional on street car spaces to be provided within the Gympie Terrace and Elizabeth Street road reserve.
It is agreed that as a result of relocating the two crossovers, two additional on street spaces were provided as a consequence of the sites development. Council has acknowledged this fact however does consider the two additional public spaces as a community bonus rather than a development credit. In addition, Council required all carparking to be provided onsite (3 of which are in tandem) as the applicant did not provide sufficient justification for Council to support the claim and provide recognition of the bonus.
Although an additional space is not able to be provided onsite, the additional 9.84m2 of use area is unlikely to result in any additional adverse impact on traffic and public car parking in the area. Customers attending the shop/restaurant uses along Gympie Terrace are also unlikely to travel to the visitor carparking accessed via Elizabeth Street. Moreover, it is considered that the proposed development aligns with the Specific Outcome O7 of the Carparking and Driveways Code based on the following grounds:
The proposed development does not introduce a new use, rather a minor expansion to an existing use where 50% of the additional use area comprises a cooking bench area to be utilised by a chef for cooking classes;
Sufficient visitor car parking is provided to the rear of the site to accommodate patrons and/or staff;
The proposed hours of operation are to remain unchanged and not expanded upon; and
The subject site and use is located in proximity to many short term visitor accommodation uses and permanent residential areas and therefore likely to attract higher levels of pedestrian and cyclist traffic.
conclusion
The proposed increase to the external use area of tenancy 3 is consistent with the overall outcome to service visitors and foreshore users.
Departments/Sections Consulted:
	Chief Executive Officer		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	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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GENERAL COMMITTEE MEETING REPORT	16 JANUARY 2017

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