HRP18103.L03.004 · MCU16/0133.01

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normal business hours. The application was subject to Impact Assessment, and was subsequently approved
by Council.
Council has now advised that they are of the opinion that the proposed minor change to this use is not
consistent with the activities undertaken within a typical café or restaurant. This position is based on a review
of the website and Facebook page of the development’s business, which identifies activities such as ‘bingo’,
‘live music’ and ‘happy hour’. Council has advised that these activities are more appropriately aligned to a
Type 3 – Bar.
The Planning Scheme defines Type 3 – Bar as follows (our emphasis added):
        The use of premises primarily for the serving of liquor for consumption on the premises. The use
        may include ancillary sale of food for consumption on the premises and may include amplified music,
        live entertainment and a dance floor. The use includes a hotel, tavern, bar or nightclub but does not
        include a restaurant.
We note that the use of the term ‘Bar’ within the above definition is not further defined within the Planning
Scheme. The absence of a definition of this term leaves the interpretation of the use ‘Type 3 – Bar’ as open to
qualitative and subjective interpretation. To assist interpretation of the defined use we submit that consideration
ought to be given to the definitions supplied within the Planning Regulation 2017, which does define the term
‘Bar’. The definition is provided below.
    Bar means the use of premises, with seating for 60 or less people, for—
        (a) selling liquor for consumption on the premises; or
        (b) an entertainment activity, or preparing and selling food and drink for consumption on the
            premises, if the use is ancillary to the use in paragraph (a).
These two definitions taken together provide clearer intention of what activities on a site would constitute a
‘Bar’. In this manner, we respectfully disagree with Council’s opinion that the Flexible Function/Industry Area
introduces a Type 3 – Bar land use onto the site. Our interpretation of the Planning Scheme is informed by the
following:
    •   In the Noosa Plan Type 3 definition, it is clear that the land use identifies the primary use of the site
        as the serving of liquor. In this instance, the primary activity of the site, and by extension the
        business, is the Industrial Business activity, being the production of alcohol. This is clearly the case
        given that:
            o    During normal business hours, the floor area dedicated to industrial activities (excluding the
                 caretaker’s residence) comprises 75% (being 680m²) of the development’s gross floor area,
                 where as the retail sales and food and beverages areas contribute only 25%;
            o    During intermittent function use of the proposed Flexible Function/Industry Area, the industry
                 activities area comprises a minimum of 47% of the site, and the retail, and food and
                 beverages areas contribute a maximum of 53% of the site;
            o    The industry activities are the primary use of the site in terms of hours of operation as the
                 conditions of the Development Permit enable 24 hour operations for production activities
                 (Condition 3), while Entertainment and Dining Business can only operate between 7am to 12
                 midnight (Condition4);
            o    Further, functions and product release events are further restricted to after 5pm Monday to
                 Friday and after 1pm on Saturday;
            o    This equates to the Flexible Function/Industry Area being primarily used for industrial
                 activities in terms of operational hours, as on any given day the industry activities can
                 presumably occur between midnight to 5 pm (i.e. 17 hours), where as the food and
                 beverages/function activities can only occur between 5pm and midnight (i.e. 7 hours);
    •   The development, including its location, has been designed and operated in a way that the Industrial
        Business Type 2 activities, being the production of alcohol, could certainly occur within the premises
        without the supplementary Entertainment and Dining Business activities, being the sale of food and

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         beverages. However, the sale food and beverages would certainly not occur on this site or in the
         configuration of the development without the on-site production of alcohol. Therefore, the production
         of alcohol is the primary activity of the premises, not the sale of liquor;
     •   Regardless of the fact that activities such as bingo, live music, and happy hour, are included on the
         business’ Facebook and website, these activities are not the primary use of the site. The activities
         seek to create a variety of experiences and varied marketing collateral to keep the business
         prominent and active;
     •   Indeed, the activities described above can, and do, form part of activities that may occur within not
         only restaurants and cafes, but are also now prominently included as activities related to such
         diverse uses as nursing homes and school fairs. The occurrence or frequency of these activities
         does not lessen the development’s ability to both allow for industrial production and to serve food
         and beverages, and does not offend any of the defining characteristics of the Type 1 – Food &
         Beverages definitions;
     •   The light entertainment activities are not necessarily associated with the consumption of alcohol, and
         do not elevate the consumption of alcohol to be the primary use; and
     •   In addition to the identified activities, the business’ Facebook and website also advertises the
         availability of consuming a meal without the necessity of consuming alcohol.
On this basis, we respectfully submit that as the development including the proposed minor change is not
primarily for the serving of liquor, Council’s proposed classification of the use as a Type 3 – Bar use is an
incorrect interpretation of the Planning Scheme.
We submit that the existing and proposed scale and nature of food and beverages operations are fully
encompassed within the definition of Type 1 – Food and Beverages, and there are no elements of the
existing or proposed operation that contradict the intent of the definition of Type 1 – Food and Beverages.
Therefore, the existing Development Permit appropriately provides for the activities occurring on the site.

2.       COMPARABLE DEVELOPMENTS WITHIN NOOSA

As justification to support the contention that the proposed minor change introduces a new use onto the site,
Council has relied on the fact that a range of light entertainment activities, such as bingo, happy hour and
meal specials such as Taco Tuesdays, are advertised on the business’ websites.
By point of comparison, we have undertaken our own searches on Facebook and websites of other
businesses within Noosa that would be considered traditional ‘café’ and ‘food and beverages’ outlets. A brief
desktop review of the following two businesses found that:
     •   Bistro C, located at Noosa Heads, is advertised as offering live music, live DJs every Saturday and
         Sunday afternoons, New Year’s Eve and Melbourne Cup events, amongst other drink and food
         specials; and
     •   Café le Monde, located at Noosa Heads, offers a $10 bar menu between 4pm and 5pm (which could
         be described as ‘happy hour’), Thursday acoustic guitar sessions, Friday band nights, Saturday
         trading until late, New Year’s Eve and Melbourne Cup events, and a pizzeria and bar offering pizzas,
         fine wines, cocktails and craft beers.
Albeit not an exhaustive list, it is likely that a similar search of other business advertised as typical café and
restaurant establishments would similarly offer happy hour, live music and special events.
Consequently, the inclusion of similar activities within the subject business should not preclude the business
from being considered as a typical ‘café’ or ‘food and beverages’ establishment. Instead, it should be
recognised that such activities and events are typical of a modern food and drink establishment looking to be
inventive and competitive by offering a variety of experiences to tourists and local patrons alike. In this way,
the classification of Type 1 – Food and Beverages for this development remains appropriate.

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3.       RELEVANCE OF FURTHER ASSESSMENT

In determining that the proposed minor change introduces a new use onto the site, the only option would be
for the applicant to pursue a new application. However, it is unclear what, if any, benefit to the public or Council
would be gained by subjecting the applicant to a new application and assessment process.
To wit, we note that in our correspondences and meetings with Council to this point, Council have not identified
this development as the source of any amenity concerns with neighbouring land uses. Indeed, Council has
advised the operation of the business has attracted no complaints to date. It is our recollection that during the
proceedings of a meeting on 20 July 2018, Council officers advised that the compliance actions were not
related to any amenity issues in terms of noise, parking, or light impacts, but rather were concerned with
protecting industrial land from fragmentation and alienation from incompatible land uses.
In relation to this matter, we would submit that the proposed minor change will have no impact on the current
and future use of the site as a primarily industrial land use. In particular, we submit that:
     •   The business operates as a boutique brewery, and typical of other boutique breweries includes an
         opportunity for food and drink provision as an ancillary and associated use;
     •   The applicant has provided Council with concept plans showing expansion plans for the brewery
         operation, which will over time reinforce the primary use of the site as a working brewery;
     •   The expansion of the brewing area over time will extend into the proposed Flexible Function/Industry
         Area, reducing the amount of floor space available for the non-industrial uses on the site; and
     •   No fixed plant or equipment such as chairs, tables or booths are located within the Flexible
         Function/Industry Area, meaning that when this minor aspect of the overall site use is not operating
         the entire floor space remains available for industrial production.
On this basis, we would respectfully submit that the current and proposed nature of site operations does not
alienate or interfere with the use of the land for industrial activities, and instead represents a modern
industrial land use that leverages on the attributes of site production activities.

4.       ASSESSMENT PROCESS TO DATE

We are somewhat dismayed at Council having raised this consideration of a potential new land use 25 days
after the lodgement of the minor change application, noting that such an application is subject to a statutory
assessment period of 20 business days. Additionally, this matter has been raised five months after Council’s
initial correspondence regarding the matter. In all of our previous interaction with Council, such a matter has
not been raised by Council.
Council has had significant opportunities to consider this matter through all previous correspondence
commencing on 8 May 2018, which included:
     •   Three letters from Council outlining Council’s position in terms of the development’s perceived non-
         compliance with the approved plans and conditions of the development, but no mention of a potential
         new use;
     •   Six emails from the Applicant clearly outlining the Applicant’s use of the space;
     •   Two meetings with Council officers to discuss in explicit detail areas of perceived non-compliance and
         the Applicant’s intended actions to satisfy Council’s requirements;
     •   A letter from Cardno outlining the intention to submit a Minor change prior to the submission of the
         application;
     •   Multiple emails from Council issued prior to the submission of the minor change application, including
         one email confirming Council would accept the application as a Minor Change for the fee of $4,455.00.
         It is noted that in assisting Council determine the applicable fee, the proposed plans of development
         to be lodged with the minor change application were provided to Council with an explanatory letter
         detailing the scale and nature of the proposed minor change; and
     •   Numerous phone conversations with Council officers throughout the process discussing the key issues
         and methods for resolution.

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Considering the above extensive correspondence with the Applicant, Council has had sufficient opportunity to
investigate and determine whether the proposal involves introducing a new use to the site. While we
acknowledge that Council has a high workload, it is respectfully submitted that this is a fundamental matter to
the planning issue in question and should have been determined well before this juncture. Such instances
erode confidence and certainty in dealing with Council and do not support the economic development of the
region.

5.       NOOSA SHIRE LOCAL ECONOMIC PLAN

It is instructive to look to the Noosa Shire Local Economic Plan (the LE Plan) for guidance on how to proceed
with the deliberations for the proposed minor change. In particular, we note the following references drawn
from the LE Plan:
     •   The LE Plan was drafted to facilitate “industry diversification, effective land use planning and enterprise
         support” to enable “economic growth and provide employment opportunities” and providing
         “opportunities for careers and businesses to flourish”;
     •   The LE Plan seeks to “broaden the economic structure of the local economy” through the growth of
         “‘smart’ industry sectors that offer high economic value and low environmental impact”;
     •   While it is acknowledged that the LE Plan is not a vehicle to promote “Development at all costs”, the
         LE Plan does outline that “Government and other organisations make significant contributions to the
         setting” in which “business and industry drive economic development”;
     •   In particular, we note that the LE Plan identifies “Good governance is achieved through effective and
         efficient decision –making that is focused on the best interest of the community”;
     •   A SWOT analysis was conducted in preparation of the LE Plan, which identified that one of the key
         weakness of delivering competitive growth in Noosa is an “inflexible/old planning scheme” and an
         “‘unfriendly’ business environment”;
     •   In that sense, in no way are Council’s actions to date supporting the LE Plan’s goals to “support growth”
         and offer a “competitive advantage”.
Given the circumstances, it is submitted that Council’s actions to date demonstrate that the issues identified
in this document (released in 2015) relating to the inflexible approaches and unfriendly business environment
remain in evidence.
The subject business is an example of an operation that achieves the Focus of Actions within the LE Plan by
being a business that can “diversify the structure of the local economy and grow smart, high value industry
sectors”. This is particularly relevant for businesses that “export products and/or services outside of the Noosa
Shire” and will “leverage local expertise to support the diversification of the local economy”.
In this way, it is submitted that the objectives of the LE Plan, being the support for high value industry sectors
and economic growth, are being frustrated in this instance by Council’s actions. The current development and
proposed minor change is an entirely appropriate land use for the site that supports the delivery of a strong
and diverse regional economy.

6.       CONCLUSION

It is considered that on any reasonable interpretation of the available Food and Beverages definitions, the
current site operations and the proposed minor change are consistent with a Type 1 – Food and Beverages
use. A Type 3 – Bar land use is not relevant in this instance as the serving of alcohol on the site is not the
primary land use as is required by the Type 3 definition.

The Type 1 – Food and Beverages land use has already been considered appropriate for this location, and
no activities to date have raised cause to alter this consideration, as all activities occurring within the site are
consistent with other café and food and beverages establishments within Noosa.

We reiterate that the LE Plan identifies “Good governance is achieved through effective and efficient decision
–making that is focused on the best interest of the community”. We would respectfully suggest that Council’s
assessment process has not achieved the desired efficiency and good governance to date. Furthermore, the
Applicant is at a loss as to consider how pursuing an assessment of Type 3 – Bar, which we maintain is
unwarranted, could in any way be considered to be undertaken ‘in the best interest of the community’.

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In light of these considerations, we now seek written advice from Council:

    •   Advising whether Council will agree to continue to assess the application as a Minor change to the
        existing development permit; or

    •   If Council does not agree with the representations, written advice as to why Council continues to
        consider the development involves a Type – 3 Bar land use.

If you have any queries or require any further information, please do not hesitate to contact Morgan
Wilson on 3100 2248 or [email protected] faithfully,




Morgan Wilson
Strategic Planning Lead
For Cardno