Negotiated Decision Notice MCU19 0007

Officer: 	Lisa Pienaar
Direct Telephone: 	07 53296514
Our Reference:	MCU19/0007 : ABECKER
Your Reference:	n.a
21 June 2019
The Mcfarlan Group Pty Ltd
C/- Pivotal Perspective Pty Ltd
4/59 Mary St
NOOSAVILLE  QLD  4566

[email protected]
Dear Sir/Madam
Negotiated Decision Notice
Planning Act 2016
I refer to your application and the representations you made in respect to the decision notice. On 20 June 2019, Council decided your representations. This negotiated decision notice replaces the decision notice approved on 18 April 2019.
In approving the application Council found the following grounds were sufficient to justify the decision despite the conflict with the Planning Scheme:
1.	Some sport and recreational uses are accepted in the Industry Zone given the potential impacts of sport and recreation uses; and
2.	The fitness centre relies on a large floor area that can be facilitated in an Industry zone, unlike other zones where it would be difficult to locate.
Details of the negotiated decision are as follows:
APPLICATION details
Application No:	MCU19/0007
Street address:	26 Project Ave Noosaville Qld 4566
Real property description:	Lot 200 RP 913612
Planning Scheme:	The Noosa Plan (8 June 2018)
decision details
Council on 18 April 2019, decided to issue the following type of approval:
Development Permit for Material Change of Use of Premises (Entertainment & Dining Business Type 2 Recreation, Amusement & Fitness)
In relation to representations, Council on 20 June 2019 decided to:
Approve the change to condition 2
Refuse to change condition 4 for the following reason:
The proposed increase in patron numbers results in a reliance on street parking, which is not consistent with the Driveways and Carparking Code in the Noosa Plan.
currency period of approval
The currency period for this development approval is 6 years starting the day that this development approval takes effect.
assessment manager conditions
PLANNING
When Conditions must be Complied With
1.	Unless otherwise stated, all conditions of this Decision Notice must be complied with prior to the use commencing, and then compliance maintained at all times while the use continues.
Approved Plans
2.	Development authorised by this approval must be undertaken generally in accordance with the Approved Plans listed within this Decision Notice.
Plan No.	Plan Name	Date
D-11801-01C	Proposal Plan (site plan), drawn by Lynda McDougall	10/12/2018
D-11801-02B	Proposed extension & new amenities block Ground Floor Plan, drawn by Lynda McDougall	10/12/2018
D-11801-03A	Extension and amenities concept – Mezzanine Floor Plan & Elevations, drawn by Lynda McDougall	10/12/2018
D-11801-03A	South and North Elevations, drawn by Lynda McDougall	10/12/2018
Nature and Extent of Approved Use
3.	Approval is for a Fitness Centre totalling a maximum floor area of 377m2 including the amenity building.
Operating Hours and Class Times
4.	The hours of operation and staff and patron numbers for the development must comply with the following requirements:
a.	The hours of operation for the approved use is limited to the hours between 5.00am and 9.00pm daily;
b.	The number of people (patrons and staff) must not exceed 15 people at any one time.
c.	Group classes must have a minimum 15 minute break between the conclusion of a class and the beginning of the next.
Noise
5.	Noise nuisance beyond the boundary of the site shall not exceed the levels specified in Table 1.
Table 1
NOISE LEVELS AT COMMERCIAL PLACE
PERIOD	Noise level at a commercial place measured as the adjusted maximum sound pressure level (Lamax, adj,T)
5am – 6pm	Background noise level plus 10 dB(A)
6pm – 10pm	Background noise level plus10 dB(A)
10pm – 7am	Background noise level plus 8 dB(A)
Amenity
6.	The development must be undertaken and operated in a manner that causes no detrimental effect upon the amenity of the area by reason of the creation of excessive noise, lighting nuisance or other emissions.
Advertising Signage
7.	Any advertising sign or device must comply with Council's policies on advertising devices.
Bicycle spaces and amenities
8.	Facilities for 4 bicycle spaces must be provided for the approved use and be made available at all times to patrons and staff at the commencement of the use. Indicate their locations with an Operational Works application.
9.	Shower and toilet facilities must be in accordance with the approved plans and available at the commencement of the use.
Landscaping Works
10.	The development site must be landscaped.  The works must be undertaken in accordance with an Operational Works approval and the Noosa Plan for that specific area and must include in particular:
a.	The extent of works shown on the approved Site Plan (D-11801-01A);
b.	An average of a 2 metre wide landscaping strip is to be provided along the Project Avenue road frontage of the subject site, exclusive of the access driveway and generally uncompromised by infrastructure items;
c.	All landscape works must be established and maintained in accordance with the approved design for the life of the development, and in a manner that ensures healthy, sustained and vigorous plant growth.  All plant material must be allowed to grow to full form and be refurbished when its life expectancy is reached;
d.	All landscape works must be maintained generally in accordance with the approved design for the life of the development.
Site Access and Driveways
11.	A sealed access driveway must be provided from Project Avenue to all parking and manoeuvring areas of the development. The works must be undertaken in accordance with an Operational Works approval and must include in particular a driveway crossover in accordance with Council’s Standard Drawing RS-051 and any associated addendums.
Car Parking
12.	A minimum of 13 car parking spaces must be provided and marked on the site and made available and accessible at all times while the use is open for business. The works must be undertaken in accordance with an Operational Works approval and must include in particular:
a.	11 visitor parking spaces (including scooter) within the total, which are clearly marked for that purpose and accessible at all times for visitor use;
b.	Car spaces 10 & 11 dedicated as staff parking spaces, which are clearly marked for that purpose;
c.	Dimensions, crossfalls and gradients in accordance with Australian Standard AS/NZS2890.1:2004 for the relevant user class.
13.	All car parking areas and access driveways must be maintained exclusively for vehicle parking and manoeuvring and kept in a tidy and safe condition at all times.
14.	Directional signage must be provided to direct visitors and customers to the car parking spaces provided on site.
Stormwater Drainage
15.	The site must be provided with a stormwater drainage system connecting to a lawful point of discharge. The works must be undertaken in accordance with an Operational Works approval and must include in particular:
a.	Collection of runoff from the building and hardstand areas;
b.	Discharge to Council’s drainage system in Project Avenue and/or to a suitable easement.
Electricity and Telecommunication Services
16.	Unless otherwise stipulated by telecommunications legislation at the time of construction, the development must be provided with all necessary conduits, pits and pipes to accommodate the future connection of optic fibre technology telecommunications.
17.	Certification must be submitted to Council from all relevant service providers which certifies that the development has met the requirements of this Decision Notice and all applicable legislation at the time of construction.
Easements
18.	Unless otherwise agreed in writing by the relevant service provider, any public or third party infrastructure located on the subject site must be placed within an easement registered against the title of the property.
19.	All easements must be designed in accordance with the planning scheme and granted at no cost to the Grantee.  Where the Grantee is Council or a service authority, the easement documentation must be in accordance with the Grantee’s standard easement terms.  Draft easement documentation must be submitted to Council for endorsement.
20.	All works must be kept clear of any existing or proposed easements on the subject land, unless agreed otherwise in writing by the Grantee.
Earthworks and Retaining Walls
21.	All fill and associated retaining walls/batters must be contained entirely within the subject site unless written permission from the respective landowner(s) is provided to Council. All earthworks must be undertaken in accordance with the provisions of Australian Standard AS3798: Guidelines on Earthworks for Commercial and Residential Developments.
Damage to Services and Assets
22.	Any damage caused to existing services and assets as a result of the development works must be repaired at no cost to the asset owner at the following times:
a.	where the damage would cause a hazard to pedestrian or vehicle safety, immediately; or
b.	where otherwise, upon completion of the works associated with the development.
Any repair work which proposes to alter the alignment or level of existing services and assets must first be referred to the relevant service authority for approval.
Performance Bond
23.	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. 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.
referral agencies
Not Applicable
advisory notes
Infrastructure Charges
This Development Permit will trigger an “Infrastructure Charge Notice” to be issued in accordance with Council’s “Charges Resolution” made pursuant to the planning legislation and regulations current at the time of issue.
property notes
Not applicable.
variation approval details
Not applicable.
further development permits required
Type of Development Permit Required	Subject of the required Development Permit
Development Permit for Operational Works	Access, Carparking, Stormwater and Landscaping
Development Permit for Building Works	All Building Works
submissions
Not applicable.
rights of appeal
You are entitled to appeal against this decision. A copy of the relevant appeal provisions from the Planning Act 2016 is attached.
During the appeal period, you as the applicant may suspend your appeal period and make written representations to Council about the conditions contained within the development approval. If Council agrees or agrees in part with the representations, a negotiated decision notice will be issued. Only one negotiated decision notice may be given.
other details
If you wish to obtain more information about the decision, electronic copies are available on line at www.noosa.qld.gov.au or at Council Offices.

Yours faithfully,
Kerri Coyle
Manager Development Assessment

Enc:	Appeal Rights
Infrastructure Charge Notice
Approved Plans/Documents
cc.	Unitywater

	Appeal Rights PLANNING ACT 2016 & PLANNING REGULATION 2017

Chapter 6 Dispute resolution
Part 1 Appeal rights
229 Appeals to tribunal or P&E Court
(1)	Schedule 1 of the Planning Act 2016 states –
(a)	Matters that may be appealed to –
(i)	either a tribunal or the P&E Court; or
(ii)	only a tribunal; or
(iii)	only the P&E Court; and
(b)	The person-
(i)	who may appeal a matter (the appellant); and
(ii)	who is a respondent in an appeal of the matter; and
(iii)	who is a co-respondent in an appeal of the matter; and
(iv)	who may elect to be a co-respondent in an appeal of the matter.
(2)	An appellant may start an appeal within the appeal period.
(3)	The appeal period is –
(a)	for an appeal by a building advisory agency – 10 business days after a decision notice for the decision is given to the agency; or
(b)	for an appeal against a deemed refusal – at any time after the deemed refusal happens; or
(c)	for an appeal against a decision of the Minister, under chapter 7, part 4, to register premises or to renew the registration of premises – 20 business days after a notice us published under section 269(3)(a) or (4); or
(d)	for an appeal against an infrastructure charges notice – 20 business days after the infrastructure charges notice is given to the person; or
(e)	for an appeal about a deemed approval of a development application for which a decision notice has not been given – 30 business days after the applicant gives the deemed approval notice to the assessment manager; or
(f)	for any other appeal – 20 business days after a notice of the decision for the matter, including an enforcement notice, is given to the person.
Note –
See the P&E Court Act for the court’s power to extend the appeal period.
(4)	Each respondent and co-respondent for an appeal may be heard in the appeal.
(5)	If an appeal is only about a referral agency’s response, the assessment manager may apply to the tribunal or P&E Court to withdraw from the appeal.
(6)	To remove any doubt. It is declared that an appeal against an infrastructure charges notice must not be about-
(a)	the adopted charge itself; or
(b)	for a decision about an offset or refund-
(i)	the establishment cost of trunk infrastructure identified in a LGIP; or
(ii)	the cost of infrastructure decided using the method included in the local government’s charges resolution.
230 Notice of appeal
(1)	An appellant starts an appeal by lodging, with the registrar of the tribunal or P&E Court, a notice of appeal that-
(a)	is in the approved form; and
(b)	succinctly states the grounds of the appeal.
(2)	The notice of appeal must be accompanied by the required fee.
(3)	The appellant or, for an appeal to a tribunal, the registrar must, within the service period, give a copy of the notice of appeal to –
(a)	the respondent for the appeal; and
(b)	each co-respondent for the appeal; and
(c)	for an appeal about a development application under schedule 1, table 1, item 1 – each principal submitter for the development application; and
(d)	for and appeal about a change application under schedule 1, table 1, item 2 – each principal submitter for the change application; and
(e)	each person who may elect to become a co-respondent for the appeal, other than an eligible submitter who is not a principal submitter in an appeal under paragraph (c) or (d); and
(f)	for an appeal to the P&E Court – the chief executive; and
(g)	for an appeal to a tribunal under another Act – any other person who the registrar considers appropriate.
(4)	The service period is –
(a)	if a submitter or advice agency started the appeal in the P&E Court – 2 business days after the appeal has started; or
(b)	otherwise – 10 business days after the appeal is started.
(5)	A notice of appeal given to a person who may elect to be a co-respondent must state the effect of subsection (6).
(6)	A person elects to be a co-respondent by filing a notice of election, in the approved form, within 10 business days after the notice of appeal is given to the person.
231 Other appeals
(1)	Subject to this chapter, schedule 1 and the P&E Court Act, unless the Supreme Court decides a decision or other matter under this Act is affected by jurisdictional error, the decision or matter is non-appealable.
(2)	The Judicial Review Act 1991, part 5 applies to the decision or matter to the extent it is affected by jurisdictional error.
(3)	A person who, but for subsection (1) could have made an application under the Judicial Review Act 1991 in relation to the decision or matter, may apply under part 4 of that Act for a statement of reasons in relation to the decision or matter.
(4)	In this section –
decision includes-
(a)	conduct engaged in for the purpose of making a decision; and
(b)	other conduct that relates to the making of a decision; and
(c)	the making of a decision or failure to make a decision; and
(d)	a purported decision; and
(e)	a deemed refusal.
non-appealable, for a decision or matter, means the decision or matter-
(a)	is final and conclusive; and
(b)	may not be challenged, appealed against, reviewed, quashed, set aside or called into question in any other way under the Judicial Review Act 1991 or otherwise, whether by the Supreme Court, another court, a tribunal or another entity; and
(c)	is not subject to any declaratory, injunctive or other order of the Supreme Court, another court, a tribunal or another entity on any ground.
232 Rules of the P&E Court
(1)	A person who is appealing to the P&E Court must comply with the rules of the court that apply to the appeal.
(2)	However, the P&E Court may hear and decide an appeal even if the person has not complied with the rules of the P&E Court

[word/footer1.xml]
Page 3 of 6

[word/footer2.xml]
PO Box 141		P. (07) 5329 6500	[email protected]	
	TEWANTIN  QLD  4565	F. (07) 5329 6501	www.noosa.qld.gov.au
				Page 1 of 6

[word/footer3.xml]
Page 6 of 6

[word/footer4.xml]
PO Box 141		P. (07) 5329 6500	[email protected]	
	TEWANTIN  QLD  4565	F. (07) 5329 6501	www.noosa.qld.gov.au
				Page 6 of 7

[Attachment: image1.png (image text)]
K Coy fs


[Attachment: image2.png (image text)]
ee) NOOSA COUNCIL