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