MCU15/0086.02 Request To Change An Existing Approval For Material Change Of Use For Entertainment And Dining Business Type 1, Food And Beverages At 2 Bottlebrush Ave, Noosa Heads

mcu15/0086.02 REQUEST TO CHANGE AN EXISTING APPROVAL FOR MATERIAL CHANGE OF USE FOR entertainment and dining business type 1, food and beverages AT 2 BOTTLEBRUSH AVE NOOSA HEADS

Document information

Author	Coordinator Planning, Patrick Murphy
Environment and Sustainable Development Department

Index	ECM/ Application/MCU15/0086.02

Attachments	1. 	Development Approval

APPLICATION DETAILS
Application No.	MCU15/0086.02
Development Approval	Development Permit for Material Change of Use of Premises - Entertainment & Dining Business Type 1 - Food & Beverages
Applicant	Little Sister
Request Received On	16 August 2018

PROPERTY DETAILS
Property Address	2 Bottlebrush Ave Noosa Heads 4567
RP Description	Lot 157 RP 88772
Land Area	546m2
Existing Use of Land	Little Sister bar

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Noosa Heads
Zone	Business Centre
Overlays	Nil
Assessment Type	Minor Change to Development Approval

RECOMMENDATION
That Council note the report by the Coordinator Planning to the Planning & Environment Committee Meeting dated 9 October 2018 regarding Application No. MCU15/0086.02 to make a minor change to an existing approval for Material Change of Use of Premises - Entertainment & Dining Business Type 1 - Food & Beverages situated at 2 Bottlebrush Ave, Noosa Heads and:
Refuse to delete Conditions 3 and 7 for the following reasons:
The proposed change to the condition 3 is likely to have a detrimental effect on the amenity of local residents contrary to the Noosa Heads Locality Code and the Business Uses Code.
Condition 7 is necessary to allow for ongoing review of the outdoor dining area operations to ensure the area continues to be appropriately managed and noise impacts are not exacerbated over time, given the proximity of the site to residential properties, the open aired nature of the dining area, permitted patron numbers and the complaints received by Office of Liquor and Gaming Regulation.
Amend conditions 3 and 7 to read as follows:
The approved use must not operate outside the hours of 5am to 12am, with use of outdoor dining area permitted after 10pm only on Friday to Monday nights inclusive.
This development permit lapses on 18 October 2020, unless written consent is provided by Council’s delegate to extend the approval. In assessing an extension to the approval, Council will have regard to any breach details available from the Office of Liquor & Gaming Regulation and any other relevant matters.
Note the report is provided in accordance with Section 63(5) of the Planning Act 2016.

REPORT
PROPOSAL
The applicant seeks approval to change an existing development approval for Material Change of Use of Premises - Entertainment & Dining Business Type 1 - Food & Beverages in regards to the operating hours and the life of the permit. The relevant conditions read as follows:
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 to Monday nights inclusive.
This development permit lapses on 18 August 2018, unless an application is received to extend the approval. In assessing an extension to the approval, Council will have regard to any breach details available from the Office of Liquor & Gaming Regulation and any other relevant matters.
This application seeks to delete both of these conditions.
background
A development approval for a Material Change of Use of Premises - Entertainment & Dining Business Type 1 - Food & Beverages was issued on 18 August 2016. The application was for the use of outdoor dining areas related to the Village Bicycle (now known as Little Sister) and Bean Drop Café tenancies. The application sought to ratify the existing, at the time, unapproved use of these areas.
Assessment of noise was critical and included review of an acoustic report which had been submitted by the applicant. The application was initially considered by Council at the 2 February 2016 Planning and Environment Committee Meeting. The officer’s recommendation to the Committee was that trading hours be limited to midnight and that use of the outdoor dining area be permitted after 10pm only on Friday and Saturday nights.
At its Ordinary Meeting held on 11 February 2016 Council resolved to defer consideration of the application, at the request of the applicant, allowing them to provide further detail regarding the use of the outdoor dining areas.
In seeking deferment, the applicant’s key concerns were the conditions recommended by staff that limited the use of the Village Bicycle’s outdoor areas. They read:
3. 	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.
4. 	Patrons in the outdoor dining area must be seated and limited to 50.
Council’s Planning and Environmental Health officers met with the applicant on 15 February 2016 and discussed the issues raised in the development assessment report, particularly noise. Staff reiterated previous advice that they considered the most appropriate way to attenuate patron noise from the outdoor areas would likely be the partial enclosure of those areas.
The applicant submitted their formal response to the deferment on 5 May 2016 which included public comments of support from an online “change.org” petition started by the Village Bicycle (from approximately 1300 people and totalling 90 pages). A petition of support (with approximately 600 signatures and totalling 47 pages) was also submitted.
When the application was considered at the 16 June 2016 Ordinary meeting the application was supported and the outdoor dining area was permitted to operate until midnight Friday to Monday. At this meeting an additional condition was also added which applied a sunset clause. The purpose of this condition was to allow Council time to consider the development’s compliance with the approval conditions to ensure the outdoor dining area could operate satisfactorily without adversely impacting on nearby residential amenity.
A copy of the development approval is included as Attachment 1.
Site details
The subject site is a 546m2 triangular shaped lot situated at the corner of Bottlebrush Avenue and Noosa Drive. The site contains a multiple tenancy building which is occupied by Peterpans adventure travel agent, The Bean Drop café and Little Sister. The site is situated at the extremity of Business Centre zoned land. The opposite side of Bottlebrush Avenue is zoned Semi-Attached Housing and contains a mix of duplex dwellings and dwelling units. Nomads backpackers is situated directly opposite the site in Noosa Drive.

The following image provides a locality plan of the site:

Figure 1: Locality plan

The following image details the zoning of the site and surrounding land:

Figure 2: Zone map

statutory Process
The applicant has requested to make a minor change to a development approval under s78 of the Planning Act 2016. An application for a minor change to a development approval can only be made in circumstances where a change would constitute a ‘minor change’.
The proposed change to the development approval requested by the applicant is determined to constitute a minor change on the grounds that:
the development would not result in substantially different development as the proposal does not change the type of use or the extent of outside dining area;
the change does not include prohibited development;
the change would not require the application to be referred to an additional referral agency or cause a referral agency to have regard to new matters prescribed by regulation;
where the original application was code assessable, the change would not cause the application to become impact assessable.
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.
The primary issues which require consideration relate to the potential for the proposed changes to impact adversely on the amenity of residential properties within proximity of the site. The following provides an assessment of each of the conditions the applicant seeks to delete.
Condition 3
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 to Monday nights inclusive.
Applicant’s Request
Deletion of condition.
Assessment of Request
At the time of the original application a number of noise complaints had been made to the Office of Liquor and Gaming Regulation (OLGR). The noise complaints predominately related to the use of the outdoor area.
The relevant provisions within the Noosa Plan regarding noise and amenity are:
Specific Outcome 1 of the Noosa Heads Locality Code:
Amenity
Uses are located, designed and operated to avoid significant adverse changes to the light, air quality, noise, accessibility, or other conditions enjoyed by users of associated, adjoining or nearby uses.
Specific Outcome 20 of the Business Uses Code.
Noise
Development is designed and sited to avoid noise emissions that unreasonably diminish the amenity of the area or surrounding uses.
As part of the original application the applicant’s Acoustic Reports were assessed by Council’s environmental health and planning officers. The principal concern with the applicant’s acoustic assessment was that it suggested marginal compliance with acoustic levels based on acoustic modelling. At the time of assessing the applicant’s representations the officer report noted the following:
The condition as applied sought to strike a balance between the business needs and the amenity of nearby residents and allowed outdoor operation to midnight on Sundays and Mondays in addition to the staff recommendation for only Fridays and Saturdays. Notably the previous assessment of the applicant’s noise reports did not “concede that the proposed use can comply with noise level limitations” but sought to achieve an acceptable balance, where noise risk remained.
To assist in the assessment of the current application advice has been sought from OLGR on the proposed changes. OLGR have advised that:
I can confirm there have been no recent noise based complaints in relation to the outdoor dining area associated with the Little Sister bar.
Also, that there are existing concerns regarding noise associated with the operational management of the outdoor dining area / use of neighbouring properties as smoking areas and patrons congregating to the front of the site and in the road after closing.
With regards to the permit conditions, prior to the planning restrictions, we had ongoing issues with patron noise that could not be resolved. It appears that the planning conditions coupled with the acoustic barrier has satisfactorily addressed the issue. However, noise from patrons gathering on the footpath would not be stopped by the fence, as they are outside of it…..so, it stands to reason that the planning conditions have played an important part in resolving the issue.
Verbally OLGR have also advised officers that for these reasons the conditions should not be changed.
Comment has also been sought from Council’s Environmental Health officers who, whilst acknowledging that no complaints have been made to Council, have also noted that there is no proposed change to how patron noise is to be managed. The officer notes that the original acoustic report suggested an acoustic fence with management interventions to minimise crowd noise. Whilst the acoustic fence has been constructed the officer maintains concern that patron management solutions are not reliable and given the proximity of nearby residents increased hours would not be appropriate.
Due to the amenity based complaints which resulted in the submission of the original application contact was made with submitters to the original application to inform them of the change application. As a result of this process feedback was received expressing concern with noise from the current use of the outdoor area and that the removal of restrictions may result in increased noise and reduce local amenity.
The site currently has the capacity to operate until midnight four nights a week. Two of the nights are weekend nights when noise and activity within proximity of the site are generally expected to be at a peak. Sunday and Monday nights, which would reasonably be expected by nearby residential properties to be quiet nights, were included to facilitate hospitality industry workers to attend this business on nights they are not usually working.
It is recognised that the site is situated within close proximity of Sunshine Beach Road and other noise generating establishments such as KB’s at Nomads and the Cornerstone Pub. However, the siting of the subject venue at the periphery of the Business Centre and opposite residential zoned and developed properties accentuates the risk attributed to noise associated with the outdoor dining area. The previous assessment of the acoustic reports and the resultant implementation of conditions recognised the sensitivity of noise attributed to the outside dining area. Deletion of the condition as per the applicant’s request would may result in increased noise on nights which nearby residents would reasonably expect, and currently experience, to be quieter. The protection of residential amenity is very important and based on the advice of OLGR, Council’s Environmental Health department and the feedback of nearby residents, extended use of the outside dining area will have a detrimental effect on this amenity.
It is important to note that the restriction on the use of the outdoor dining area does not impinge on the hours which the inside bar can be used. The use of the inside area is governed by the liquor licence which limits the hours of operation until midnight.
The proposed deletion of Condition 3 is likely to have a detrimental effect on amenity contrary to Specific Outcome 1 of the Noosa Heads Locality Code and Specific Outcome 20 of the Business Uses Code. Accordingly, the proposed change is not supported.
Correction of error
It has been identified that the current wording of Condition 3 contains an error as it limits the hours of operation from 5am to 12pm. The correct wording should be 5am to 12am. Accordingly the Decision Notice for this application will reflect the correct wording.
Condition 7
This development permit lapses on 18 August 2018, unless an application is received to extend the approval. In assessing an extension to the approval, Council will have regard to any breach details available from the Office of Liquor & Gaming Regulation and any other relevant matters.
Applicant’s Request
Deletion of condition
Assessment of Request
The condition has limited the time which the approval for the outdoor dining area applies and provides an opportunity for Council to review the impact of current operations when considering an application to extend or delete the condition. In this instance the applicant has sought to delete the condition.
As detailed earlier in this report, advice has been sought from OLGR who confirm that there are existing concerns regarding noise associated with the operational management of the outdoor dining area / use of neighbouring properties, as patrons are congregating to the front of the site and in the road after closing.  OLGR have also advised that they are not supportive of increased operating hours. Nearby residents have also expressed concern with the noise associated with the use of the outdoor dining area.
It is acknowledged that Little Sister contributes to the vitality of Noosa Junction and provides economic benefit to the local economy via employment and the use of local products. It is also recognised that capital has been utilised by the current and previous owners to establish and maintain the commercial operation on the site, the outdoor dining area being a key part of the business’s success.
In light of the existing concerns with regards to noise and operational issues, it is recommended that the applicant’s request to delete this condition be refused.
It is recommended that the condition be amended to allow for the continued use of the outdoor dining area for a further two years and further written consent from Council to continue to use the outdoor dining area after this time be requested. Consent via written consent will mean that there is no financial impost by way of an application fee to change the development approval but permits Council the ability to continue to review the matter.
Therefore, it is recommended that Condition 7 be changed to read:
This development permit lapses on 18 October 2020, unless written consent is provided by Council’s delegate to extend the approval. In assessing an extension to the approval, Council will have regard to any breach details available from the Office of Liquor & Gaming Regulation and any other relevant matters.
cONSULTATION
Referral Agencies
The applicant was not required to be referred to any Referral Agencies.
Contact was made with the Office of Liquor & Gaming Regulation whose feedback forms part of this report.
Other Referrals
The application was forwarded to the following internal Council specialists:
Environmental Health
conclusion & reasons for decision
The application seeks to change an existing approval for the use of an outside dining area associated with the Little Sister bar by removing conditions which limit the hours when the outside dining area can be used and place an expiry date for when the permit lapses. In light of advice received from the Office of Liquor and Gaming Regulation, Council’s Environmental Health officer and feedback from submitters to the original application the proposed changes are likely to have a detrimental effect on amenity contrary to Specific Outcome 1 of the Noosa Heads Locality Code and Specific Outcome 20 of the Business Uses Code. Accordingly, the proposed changes are not supported. The expiry condition is recommended to be amended to require further written consent from Council in 2 years.
Departments/Sections Consulted:
	Chief Executive Officer	x	Community Services		Corporate Services
	Executive Officer		Community Development		Financial Services
	Executive Support		Community Facilities		ICT
			Libraries & Galleries		Procurement & Fleet
			Local Laws		Property
		x	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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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT	9 OCTOBER 2018

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