Change to Approval Report · 51987.44.02

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The Proposal

4.     The applicant proposes to make changes to the plans and conditions of
       the existing Material Change of Use approval on the site (51987.44.01)
       (the Approval).

5.     The approval relates to a Development Permit for Material Change of
       Use of Premises - Entertainment & Dining Business - Type 1, Food &
       Beverages and Retail Business - Type 2 Shop & Salon.

6.     The proposed changes include:

       a. Changes to the approved plans to:

             i. make minor adjustments to the internal layout of the building to
                allow for a publicly accessible toilet to be provided within each
                tenancy; and
            ii. reflect minor alterations to the awning design and external
                features of the building. These changes include:
                1. refurbishing and extending the existing awning parapet with
                     timber vertical battens;
                2. reducing the parapet height of the awning by 50mm;
                3. providing a tensioned stainless-steel trellis as the ‘feature
                     frieze’ instead of a lattice trellis;
                4. changing the external window and door locations on the
                     northern façade to reflect the amended internal layout; and
                5. annotating the painted mural which was detailed during the
                     assessment of the previous ‘other change’ application and
                     has been completed on the northern façade.




Figure 1 – Proposed Western Elevation


            An assessment in relation to the changes to the plans is detailed
            under the assessment heading in this report.

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      b. Change Conditions 13, 14, 15, 16, 24. The conditions can be
         summarised as outlined below:

          •   Condition 13 relates to the list of approved plans;
          •   Condition 14 relates to the total use area permitted for Type 1
              Food & Beverages;
          •   Condition 15 relates to the total Gross Floor Area permitted for
              Type 2 Shop and Salon;
          •   Condition 16 relates to operating hours.
          •   Condition 24 relates built form outcomes and the last sentence
              of this condition requires amendments to be made to the
              awning design.

          The proposed changes, and an assessment of these, is provided
          under the heading planning scheme review, contained within this
          report.

The Land

7.    The subject site is situated at 6 Thomas Street, Noosaville and is legally
      described as Lot 1 on RP161212.

8.    The site has a total area of 653m2 and contains an existing 2-storey
      building comprising five tenancies at the ground level and residence
      above.

9.    The site has a 20m frontage to Thomas Street to the west. The premises
      incorporates 9 existing car parks to the rear.

10.   The site is burdened by 2 easements (Easement A & Easement C)
      located over the driveway, which adjoins the northern boundary of the
      site.

11.   The site achieves vehicular access via a driveway located on the
      adjoining property to the north, which incorporates an easement over
      the driveway (Easement B) to allow for reciprocal access rights.

12.   At the time that the ‘other change’ application was properly made on
      19 July 2019 under the Noosa Plan 2006, the site was:
           a. within the Noosaville Locality; and
           b. zoned Visitor Mix Use.

13.   Under the Noosa Plan 2020 (Amendment 1), which took effect on 25
      September 2020, the site is:
          a. within the Noosaville Local Plan Area; and
          b. zoned Tourist Accommodation.

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Background

14.   The original building is believed to have been constructed in the late
      1970s and there is no town planning related approvals associated with
      the original construction of the building.

15.   On 6th October 1987, Council at its meeting held, resolved to approve
      an application for a retail shop within the premises (Council Reference
      DNA 89). This application did not require public notification to occur.

16.   The unapproved works located adjacent to the frontage of the site
      occurred approximately 10 years ago by a previous owner of the
      premises.

17.   On 17 July 2019 an application was made for an ‘other change’ under
      Section 82 of the Planning Act 2016.

18.   At its ordinary meeting on 16 January 2020, Council decided to approve
      the requested change as detailed below:
      a. Approve the Change and add conditions 12 to 34
      b. Delete existing conditions 1 to 11.
      c. Agree to enter into an Infrastructure Agreement with the applicant
           that provides for contributions in lieu of 2 on-site car parking spaces.

19.   A Building Approval for the work was issued on 28 April 2020 and
      construction commenced soon after.

20.   On 17 December 2020 Council issued a show cause notice in relation to
      a number of alleged non compliances with conditions.

21.   This minor change application has been prepared to rectify the issues
      raised in the Show Cause Notice.

Statutory process

22.   This request is considered to constitute a minor change in accordance
      with Section 81 of the Planning Act 2016.

23.   Schedule 2 of the Planning Act 2016 defines a minor change as follows:
      A minor change, for a development approval, is a change to the
      approval that —
      i. would not result in a substantially different development; and

      ii.   if a development application for the development, including the
            change, were made when the change application is made would
            not cause —
            A. the inclusion of prohibited development in the application; or

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          B. referral to a referral agency, other than to the chief executive, if
             there were no referral agencies for the development
             application; or
          C. referral to extra referral agencies, other than to the chief
             executive; or
          D. a referral agency to assess the application against, or have
             regard to, matters prescribed by regulation under section 55(2),
             other than matters the referral agency must have assessed the
             application against, or have had regard to, when the
             application was made; or
          E. public notification if public notification was not required for the
             development application.

24.   In response to the above, it is submitted that the proposed changes
      would not:
            a. result in substantially different development for the reasoning
               outlined below;
            b. include prohibited development;
            c. require the application to be referred to any referral agencies;
               and
            d. cause the need for public notification because the former
               ‘other change’ was impact assessable and the proposal, if
               remade, would be code assessable.

25.   Further to the above, Schedule 1 of the DA Rules provide the following
      guideline with regard to substantially different development:

      In determining whether the proposed change would result in
      substantially different development, the assessment manager or referral
      agency must consider the individual circumstances of the development,
      in the context of the change proposed.

      A change may be considered to result in a substantially different
      development if the proposed change:
      a) involves a new use; or
      b) results in the application applying to a new parcel of land; or
      c) dramatically changes the built form in terms of scale, bulk and
         appearance; or
      d) changes the ability of the proposed development to operate as
         intended; or
      e) removes a component that is integral to the operation of the
         development; or
      f) significantly impacts on traffic flow and the transport network, such
         as increasing traffic to the site; or
      g) introduces new impacts or increase the severity of known impacts;
         or (h) removes an incentive or offset component that would have
         balanced a negative impact of the development; or
      h) impacts on infrastructure provisions.

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26.   In response to the above, the proposed change would not:
      a) involve a new use;
      b) result in the application applying to a new parcel of land;
      c) dramatically change the built form in terms of scale, bulk and
           appearance because the changes relate to very minor
           amendments to the external features and appearance of the
           building;
      d) change the ability of the development to operate as intended;
      e) remove an integral component of the development;
      f) impact on traffic flows;
      g) increase the severity of known impacts;
      h) remove an offset component of the development that would
           balance impacts; or
      i) impact on infrastructure provisions.

27.   On this basis, it is considered that a lawful process in making the request
      under s79 & 81 of the Act has been followed.

28.   In accordance with Section 81 of the Act, in assessing and deciding
      applications for minor changes, the responsible entity:

      (3)
      (a)   must assess against, or have regard to, the matters that applied
            when the development application was made; and
      (b)   may assess against, or have regard to, the matters that applied
            when the change application was made

29.   The ‘other change’ application which approved the refurbishment of
      the building was properly made on 19 July 2019 under the Noosa Plan
      2006.

30.   The Noosa Plan 2020 (Amendment 1), which took effect on 25
      September 2020, applied at the time that the minor change application
      was made.

Planning Scheme Review

Change to Approved Plans

31.   The proposed changes to the awning and external features of the
      building align with the outcomes sought for the site by both the Noosa
      Plan 2006 and the Noosa Plan 2020. Notably, the changes will:

Noosa Plan 2006

      a. provide a vibrant and pedestrian friendly streetscape that creates
         visual interest in accordance with Overall Outcome qq) and
         Specific Outcome O60 of the Noosaville Locality Code;
      b. provide a mix of lightweight and textured external materials,
         including timber finishes to the awning, front building facade, door

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            and window frames in accordance with Probable Solution S21.1 and
            Specific Outcome 021 of the Noosaville Locality Code; and
      c.    Refurbish and extend an existing awning in a manner that is
            compatible with the surrounding established streetscape in
            accordance with Specific Outcome O29 of the Noosaville Locality
            Code.

Noosa Plan 2020

      d. create a vibrant atmosphere and complement and enhance the
         function and attractiveness of the area as a visitor destination in
         accordance with Overall Outcome (2)(b) of the Tourist
         Accommodation Zone Code;
      e. addresses and enhances the streetscape by incorporating
         articulation and individual design elements that add visual interest
         to the development in accordance with PO14 of the Tourist
         Accommodation Zone Code;
      f. provide a vibrant and pedestrian friendly active street frontages in
         accordance with PO12 and PO14 of the Tourist Accommodation
         Zone Code; and
      g. incorporate the use of lightweight and textured materials in
         accordance with A07.5 and PO7 of the Noosaville Local Plan Code
         2020.

Change to Conditions

32.   The proposed condition changes, and an assessment of each, is
      discussed below:



33.   Condition 13 – Approved Plans

      Condition 13 currently reads as follows:

      13.    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
      15.0319.1.3A         A      New Ground Floor Plan          Aug 2019
      15.0319.1.4A         A      New First Floor Plan           Aug 2019
      15.0319.1.5A         A      Elevations                     Aug 2019

       Applicant’s Request

34.   It is sought that the condition be amended as follows to reflect the
      updates plans which have been described earlier:

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13.    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
      1.3           A       New Ground Floor Plan, prepared       March 2020
                            by Andrew McKellar
      1.4           A       New First Floor Plan, prepared by     March 2020
                            Andrew McKellar
      4.1           A       Elevations                            March 2020



35.   Conditions 14 & 15 - Nature and Extent of Approved Use

      Conditions 14 & 15 currently read as follows:
      14.   The total use area (excluding kitchen and food storage areas) of
            Entertainment and Dining Business - Type 1 Food & Beverages on
            the site must not exceed 54.4m2.
      15.   The total gross floor area of Retail Business - Type 2 Shop & Salon
            on the site must not exceed 209.25m2.

      Applicant’s Request

36.   It is sought that both conditions 14 & 15 be deleted.

37.   The specification of use areas and gross floor areas to the nearest
      square centimeter is considered to be overbearing and an
      unreasonable imposition on the development. These conditions, which
      require specific areas for each use, would prevent the flexible use of
      space within the building by tenants, and require a development
      application to be lodged should there be any slight change in use area
      or use within the premises. This would cause future delays and costs for
      the building owner and tenants and cause vacancies which would cut
      across the planning intent for the Thomas Street streetscape in which it is
      intended to have a vibrant and active street frontage that
      complements and enhances the area as a visitor destination.

38.   It is understood that the purpose of this condition related to carparking
      requirements associated with the additional use area sought by the
      ‘other change’ application.

39.   The ‘other change’ application sought a retrospective approval for the
      enclosure of a 29m2 area of space adjacent to the Thomas Street
      frontage and the use of single garage space having area of 27m2,
      being a total area of 56m2 to be used shop or restaurant purposes.

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40.    Under the Noosa Plan 2020, the following carparking rates apply to
       each use:

Food and Drink Outlet       one space per 20m² of use area and outdoor
                            business area, excluding kitchen and food storage
                            areas; and

                            if including a drive-through, queuing room for 10
                            vehicles

Shop                        One space per 20m²


41.    Use Area is defined by the scheme as follows:

use area means the sum of the area of the premises (exclusive of all walls and
columns), including all storeys, used or intended for use for a particular
purpose. The term excludes—
       a) the areas (inclusive of all walls and columns) of any lift rooms,
           motor rooms, air conditioning or other mechanical or electrical
           plant or equipment rooms located at any topmost storey;
       b) the areas of any staircases or lifts wells;
       c) the areas of any common foyer or arcade;
       d) the areas of any public toilets; and
       e) the areas used for the access, parking and associated
           manoeuvring of motor vehicles.

42.    The previous ‘other change’ allowed for the following changes to floor
       areas:
       a.   change the approved ‘retail shop’ to a restaurant and shop &
            salon;
       b.   include 29m2 of additional gross floor area (currently an existing
            unapproved structure) to be used for the purposes of a restaurant
            (refer to blue area on Figure 2);
       c.   change the use of an existing 27m2 single car garage for the
            purposes of a restaurant (refer to pink area on Figure 2);
       d.   change the use of approximately 24m2 of existing ‘retail shop’ to a
            restaurant (refer to green area on Figure 2); and
       e.   The remainder of the ground floor building use is to remain as a
            shop (refer to white areas on Figure 2).

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Figure 2: Proposed Additional Gross Floor Area (previous ‘other change’)


43.    It was determined that this change would result in 2 additional car
       spaces being required for the development.

44.    Our client has paid contributions in lieu of providing these 2 spaces and
       therefore has a credit of 2 spaces pertaining to the site.

45.    Instead of the above use area, the proposed change would:
       a.    include 29m2 of additional gross floor area (currently an existing
             unapproved structure) to be used for the purposes of a restaurant
             (refer to blue area on Figure 1);
       b.    change the use of an existing 27m2 single car garage for the
             purposes of:
              i. A restaurant (17m2) (refer to purple area in Figure 3); and
            ii. Shop (10m2)(refer to yellow area in Figure 3).
       c.    change the use of approximately 24m2 of existing ‘retail shop’ to a
             restaurant (refer to green area on Figure 2).

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Figure 3: Proposed Floor Areas

46.    The following exclusion would apply to the abovementioned figures for
       the purpose of calculating use area associated with the food and drink
       outlet:
       a.   a 14.2m2 kitchen area;
       b.   1.2m2 storage area; and
       c.   a 4m2 public toilet associated with the food and drink outlet.

47.    Having consideration to the above, the following carparking
       requirements would apply under the current Noosa Plan 2020:

                                 Use Type                                 area          Triggered
                                                                                         spaces
                                            Noosa Plan 2020
Food and Drink Outlet - blue area (29m2)                         1 space per 20m2 use     1.45
                                                                 area
Food and Drink Outlet – purple area (17m2) minus use area        1 space per 20m2 use     0.14
exclusions of 14.2m2 = 2.8m2                                     area
Food and Drink Outlet – green area (24m2) will result in a       1 space per 20m2 use     -0.26
carparking credit of 5.2m2 as result of the change from a Shop   area
to a Food and Drink Outlet. This is caused because the
existing credits that apply to a shop at a rate of 1 space per   Minus credits for a
20m2 and the use area exclusions that apply to storage areas     existing shop
(1.2m2) and public toilets (4m2) for food and drink outlets.
Shop – yellow area (10m2)                                        1 space per 20m2          0.5
TOTAL                                                                                     1.83

48.    The above table demonstrates that the proposed changes would not
       trigger any additional carparking when compared to the ‘other
       change’ application that has previously been approved.

49.    The credit relating to the contributions in lieu of carparking paid for 2
       spaces is therefore sufficient to address the internal changes to the use
       areas.

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50.   Condition 16 – Operating Hours

      Condition 16 currently read as follows:

      16.     The approved uses must not operate outside the hours of 7am
              to 10pm, 7 days a week, except Friday and Saturday, where
              Entertainment and Dining Business Uses may operate until 12
              midnight. The requirements of this condition must be included in
              the Community Management Statement for any Body
              Corporate for the subject site.

Applicant’s Request

51.   It is requested that condition 16 be changed as follows:


      16.     The approved uses must not operate outside the hours of 7
              5:30am to 10pm, 7 days a week, except Friday and Saturday,
              where Entertainment and Dining Business Uses may operate until
              12 midnight. The requirements of this condition must be included
              in the Community Management Statement for any Body
              Corporate for the subject site.


52.   It is considered that the current hours, which limit businesses opening to
      after 7am, are overly restrictive and cut across the planning intent for
      the Thomas Street area which is intended to:
      a.     provide vibrant and active streets and public spaces;
      b.     create a vibrant atmosphere and complement and enhance the
             function and attractiveness of the area as a visitor destination; and
      c.     provide cafes, restaurants, entertainment, function facilities
             and complementary shopping and personal services cater to the
             needs of visitors as well as Noosa Shire residents enjoying these
             areas.

53.   Further to the above, Acceptable Outcome AO11.1 (Table 9.3.7.3) of
      the Business Activities Code contained within the Noosa Plan 2020
      permits uses to operate from 6:00am. It is considered opening 30 minutes
      earlier would not cause a nuisance to nearby sensitive land uses in
      accordance with the correlating Performance Outcome PO11 of the
      code.


54.   Condition 24 – Building Appearance

      Condition 24 currently read as follows

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      24.   The building must be well articulated, with strong vertical design
            feature elements. The building must include subtle changes in
            colours, textures and materials to break up the building facades.
            The proposed awning located within the road reserve must be a
            lightweight structure, and the parapet reduced in height to the
            reasonable satisfaction of the Manager Development Assessment
            to comply with the Noosaville Locality Code.

Applicant’s Request

55.   It is requested that condition be amended as follows:

      24.   The building must be well articulated, with strong vertical design
            feature elements. The building must include subtle changes in
            colours, textures and materials to break up the building facades.
            The proposed awning located within the road reserve must be a
            include lightweight timber features as shown on the approved
            plans. structure, and the parapet reduced in height to the
            reasonable satisfaction of the Manager Development Assessment
            to comply with the Noosaville Locality Code.

56.   The current condition offers such uncertainty in outcome that it is an
      unreasonable imposition on the development.

57.   The proposed awning, as indicated on the plans, also meets the
      relevant outcomes of the planning scheme for the following reasons:

      a. It is an existing structure within the streetscape that is to be
         refurbished and extended and will preserve the form, scale and
         amenity of the surrounding area in accordance with AO7.2, AO7.3
         and PO7 of the Noosaville Local Code 2020;
      b. It will be finished with lightweight timber vertical battens in
         accordance with A07.5 and PO7 of the Noosaville Local Plan Code
         2020; and
      c. It will provide an overall improvement to the amenity of the
         streetscape when compared to the existing structure.

4. CONCLUSION

This report identifies that the proposed development constitutes a minor
change and does not raise any significant issues against the current Noosa
Plan 2006 and the Noosa Plan 2020. Consequently, it is requested that Council
make the change and issue a changed approval.

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Should you have any questions in relation to the proposal, or any aspect of
the development, please do not hesitate to contact me on 0423952928.

Yours faithfully,




Callie Brennan
Town Planner