Negotiated Report (Representations made) MCU22 0101 · MCU22/0101

REQUEST FOR NEGOTIATED DECISION REPORT
Author	Acting Coordinator Planning  - Nadine Gorton
Development Assessment

APPLICATION DETAILS
Application No.	MCU22/0101
Development Approval	Material Change of Use - Food and drink outlet
Applicant	Retail Vending Australia Pty Ltd
Representations Received On	14 October 2022
Number of Submissions for Original Application	Nil

PROPERTY DETAILS
Property Address	115 Poinciana Ave Tewantin Qld 4565
RP Description	Lot 3 RP 71997
Land Area	293.0000 m²
Existing Use of Land	Vacant Office Building

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Tewantin
Zone	District Centre
Overlays	Acid Sulfate Soils
Assessment Type	Representations made to original approval

background
A development approval for a Material Change of Use - Food and drink outlet was issued on 13 September 2022
The applicant suspended the appeal period on several occasions and made representations on 14 October 2022 to the development approval conditions. The representations are detailed below but primarily relate to noise conditions, number of trees and the amount of the bond.
assessment
An assessment in relation to each of the submitted representations is provided below:
Condition 10
Any amplified noise, other than low level piped music not greater than 75dBC, at the premises must be conducted through a sound limiting device at all times to ensure that noise does not exceed levels prescribed in the conditions of a licence.
Condition 11
The sound limiting device is to have a locking mechanism, which is to be locked at all times except for inspection or maintenance work on the device.
Condition 12
Access to the sound limiting device, except for maintenance work, is restricted to the licensee, nominee and the person in charge of the premises at any time.
Condition 13
The sound limiting device must be checked and if necessary calibrated by a qualified acoustic engineer at least every 12 months to ensure compliance with the conditions of this licence. Evidence of the sound limiting device calibration must be made available to an authorised person on request.

Applicant’s Representation
The applicant details that the above conditions relating to the provision of a sound limiting device are unreasonable and an onerous burden as other conditions of the approval (conditions 7 to 9) restrict noise limits and provide protection to adjoining land uses. The applicant indicates that the site is located in the Town Centre and that there are other Food and Drink Outlets that have similar hours but are not operating with a sound limiting device. The applicant is willing to undertake noise monitoring and provide records to Council and suggests an amendment to the condition 10 to reflect this noise monitoring and deletion of conditions 11, 12 and13.
Assessment of Representation
The applicant’s submission regarding removal of the sound limiting device is generally supported as conditions 6 to 9 (detailed below) address noise impacts from the site.
The operation of the food and drink outlet and associated activities must not result in environmental nuisances such as noise, visual or odour impacts that unreasonably diminish the amenity of the area or surrounding uses.
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.
Entertainers or speakers used to amplify noise must not be located in any outdoor dining area.
The applicant’s request is supported. Conditions 10 to 13 were originally imposed on commercial developments approved under the Superseded Planning Scheme however these conditions are no longer considered appropriate and the remaining conditions considered to adequately address noise.  Condition 10 is recommended to be amended to require noise monitoring and conditions 11, 12 and 13 deleted.

Condition 15
Landscaping of the site must be undertaken as detailed on Plan SD103 Plan – Proposed Landscape prepared by Robinson Architects.  An application for operational works is to be submitted and approved prior to issue of Building Approval and include:
The landscape planter and soft landscaping area are to remain open to the elements and not roofed.
The soft landscape area is to include 4 x45 litre tree species and understorey plantings
Applicant’s Representation
The applicant submits that the requirement for 4 x 45 litre trees in the landscaping areas is unreasonable. The applicant comments:
No tree species are suitable to be planted in the planter box on the external deck and outdoor dining area due to the shallow planting depth.  The planting of tree species is suitable only to the landscape area on the ground floor, rear of the deck. This area is 4.4 metres in length and as such will only support, as a maximum, two (2) tree species. It is proposed that two (2) 45ltr Tuckeroo (Cupaniopsis) trees are planted to this area, along with understorey planting. Tuckeroo trees generally grow to a height of 5 to 8 metres and width of 5 to 7 metres. As such, along with understorey planting, the proposed two (2) trees will screen the deck from car park.
A Detailed Landscape Plan will be submitted to Council as part of an application for a permit for Operational Works.
Assessment of Representation
The applicant’s representation is supported as it is agreed that the ground level landscape area would not be able to support 4 trees. The condition is changed reflect the provision of 2 trees on the lower area.

Condition 17
Security in the form of a cash bond or trading bank guarantee to the sum of $8,000 must be submitted to Council, to secure performance of all conditions of this approval, prior to the issue of a Development Permit for Operational Works or Building Works whatever comes first. The cash bond or trading bank guarantee will be returned on performance of the conditions of approval less any costs incurred by Council in respect of enforcing performance of this permit. Council reserves the right to call upon the bond or guaranteed sum to effect compliance with conditions.
Applicant’s Representation
The applicant submits that condition 17 contradicts with the requirement for Operational Works to be approved prior to Building Approval and that the bond of $8000 is onerous and irrelevant due to the requirement for further permits. The applicant advises:
The higher order approval (MCU22/0101) and the conditions contained will be enforced through the subsequent approvals required by the licensee/operator to operate, and include but are not limited to:
• Application for a permit for Operational Works to Noosa Council,
• Application for Building Works to Private Certifier and Noosa Council,
• Application for Plumbing Works to Private Certifier and Noosa Council,
• Application for Food Business Licence to Noosa Council, and
• Application for a Restaurant Licence to Queensland Office of Liquor and Gaming Regulation.
Considering the Food and Drink Outlet requires numerous subsequent approvals to operate as approved, it is unreasonable for Council to impose a bond to ensure that the performance of all conditions is achieved. Compliance with Conditions contained within MCU22/0101 is necessary in order for the abovementioned approvals to be issued.
The applicant requests deletion of the condition.
Assessment of Representation
The applicant’s representation is not supported as a bond is considered relevant to ensure the conditions of approval are achieved. Due to the extent of works a reduced bond of $5000 is considered sufficient to cover the proposed works.

conclusion & reasons for decision
The applicant has lodged representations to conditions of approval associated with a Food and Drink Outlet at 115 Poinciana Avenue, Tewantin. The representations revolve around noise requirements, landscaping and bonds and are generally supported with changes to conditions detailed below
RECOMMENDATION
With regard to Application No. MCU22/0101 for a Material Change of Use - Food and drink outlet situated at 115 Poinciana Ave, Tewantin and described as Lot 3 on RP71997 and the representations made, Council on 14 October 2022 decided to:
A.	Agree to amend conditions 10, 15 and 17 to read as follows:
10. The applicant/operator of the site is to undertake regular noise monitoring to ensure the operation of the premises complies with the conditions 7 and 8. Monitoring records are to be made available upon request from Council.
15. Landscaping of the site must be undertaken as detailed on Plan SD103 Plan – Proposed Landscape prepared by Robinson Architects.  An application for operational works is to be submitted and approved prior to issue of Building Approval and include:
15.1 The landscape planter and soft landscaping area are to remain open to the elements and not roofed.
15.2 The soft landscape area is to include 2 x45 litre tree species and understorey plantings
17. Security in the form of a cash bond or trading bank guarantee to the sum of $5,000 must be submitted to Council, to secure performance of all conditions of this approval, prior to the issue of a Development Permit for Operational Works or Building Works whatever comes first. The cash bond or trading bank guarantee will be returned on performance of the conditions of approval less any costs incurred by Council in respect of enforcing performance of this permit. Council reserves the right to call upon the bond or guaranteed sum to effect compliance with conditions.
B.	Delete conditions 11,12,13.
C.	Note the report is provided in accordance with Section 83(9) of the Planning Act 2016.

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