Further Report - Development Application For Material Change Of Use - Entertainment & Dining Business Type 1 - Food & Beverages Situated At 2 Bottlebrush Avenue, Noosa Heads - MCU15/0086

FURTHER REPORT - DEVELOPMENT APPLICATION FOR MATERIAL CHANGE OF USE - ENTERTAINMENT & DINING BUSINESS TYPE 1 - FOOD & BEVERAGES SITUATED AT 2 BOTTLEBRUSH AVENUE, NOOSA HEADS - MCU15/0086

Document information

Author	Coordinator - Planning, Denis Wallace
Planning & Infrastructure Department

Index	ECM/ Application/ MCU15/0086

Attachments	1.	Previous Report to Council
2.	Applicant’s Additional Information & Submission to Council

APPLICATION DETAILS
Applicant	Village Bicycle
Proposal	Development Permit for Material Change of Use of Premises - Entertainment & Dining Business Type 1 - Food & Beverages
Property Address	2 Bottlebrush Avenue, Noosa Heads  Qld  4567
RP Description	Lot 157 RP 88772

RECOMMENDATION
That Council note the reports by the Coordinator Planning Assessment to the Planning & Organisation Committee Meeting dated 2 February 2016 and the Planning and Environment Committee Meeting dated 7 June 2016 regarding Application No. MCU15/0086 for a Development Permit for Material Change of Use for Entertainment & Dining Business Type 1 – Food & Beverages situated at 2 Bottlebrush Avenue, Noosa Heads and approve the application in accordance with the following conditions:
PLANNING
When Conditions Must be Complied With
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 Plan
Development undertaken in accordance with this approval must generally comply with the approved plan of development. The approved plan is listed in the following table and may be further amended by these conditions.
Plan No.	Rev.	Plan/Document Name	Date
A0	-	SITE PLAN	October 2015
Nature and Extent of Approved Use
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.
Patrons in the outdoor dining area must be seated and limited to 50.
The outdoor dining areas within the site must be in accordance with those shown on the approved plan, with no more than 40m2 used at any one time.
Service vehicle movements associated with the approved use (including loading and unloading) must not occur outside the hours of 7am to 6pm Monday to Saturday and not at all on Sundays or public holidays.
Noise
External speakers or amplified music are not permitted.
Internal amplified music must be directed away from the Bottlebrush Avenue frontage.
Refuse disposal, particularly glass bottles and the like, must be considerate of noise at all times.
Management must ensure patrons leave the premises and street frontage promptly after nightly closing time and do not mingle or otherwise cause noise nuisance to residents on Bottlebrush Avenue.
The development must be undertaken in accordance with the recommendations of the Acoustic Report prepared by ATP Consulting Engineers (Reference ATP150314-NIA-02) dated 24 June 2015 and ATP’s addendum letters dated 9 October 2015 and 10 December 2015.
The 2.6m acoustic fence recommended by the approved Acoustic Report must be erected within 3 months of this approval taking effect.  The fence must meet the construction standards required by the approved Acoustic Report.
Noise emissions from any new mechanical equipment associated with the development shall comply with the following requirements:
Air-conditioning and Refrigeration
7am to 10pm: Background + 5dB(A)
10pm to 7am: Background + 3dB(A)
Written certification must be submitted from a suitably qualified person confirming noise levels from any new mechanical equipment comply when measured at either the residential boundary or outside the most exposed part of an affected building, whichever is the closest to the equipment.
The assessment and certification is required immediately after installation of the equipment and in a format approved by Council.  All equipment should be operating at the same time to test the overall noise level created.
Advice: It is highly recommended the person you engage to certify the installation is involved prior to installation of any equipment so they can recommend where equipment is best located. They can also advise about noise enclosures and make other suggestions to avoid noise problems.  It is a lot more costly to try and deal with noise problems after installation.
Landscaping
Dense native screening shrubs up to 3m in height must be established on the Bottlebrush Avenue side of the new acoustic fence for its full length to visually screen the fence.
Refuse
Refuse containers must be provided in accordance with the requirements of the Environmental Protection (Interim Waste) Regulation 1996 and (Waste Management) Regulation 2000, for the storage and collection of refuse.

REPORT
A Report was presented to Council’s Planning & Organisation Committee regarding a development application for Material Change of Use for an Entertainment & Dining Business - Type 1 Food & Beverages situated at 2 Bottlebrush Avenue, Noosa Heads.  Refer Item 2, Page 6 of the Planning & Organisation Committee Agenda dated 2 February 2016 (included as Attachment 1).
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 limiting 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 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.  The response is included as Attachment 2.  The following supporting documents were also lodged:
Public comments of support from an online “change.org” petition started by the Village Bicycle (from approximately 1300 people and totalling 90 pages).
Petition of Support (with approximately 600 signatures and totalling 47 pages).
Hard copies of the comments and petition can be made available for Councillors’ perusal.  The sections that follow provide further assessment of the issues raised in the applicant’s submission.

Need for a late night venue of this type
The applicant’s comments regarding the need for the Village Bicycle venue, the niche it fills and its popularity with locals, visitors and hospitality workers are noted and not disputed.  The comments are reinforced by the broad support shown in the submitted public comments and petition.  The development assessment report before Council aims to facilitate the use, subject to conditions staff consider necessary to meet the outcomes sought by The Noosa Plan’s Noosaville Locality Code and Business Uses Code to protect the amenity of existing nearby residents.  The report highlights the use is consistent with the site’s Business Centre zoning and broadly desirable but specific noise considerations are raised due to the site’s frontage to Bottlebrush Avenue.
Noise
Noise has been the critical assessment issue. The applicant’s submission makes the following summary points:
The applicant has been very cooperative in providing amended reports and advice to Council as it “experimented” with the height of the acoustic fence and acceptable noise levels above background noise levels after 10pm.
It should be noted that noise specialists engaged by the applicant have identified compliance with Council’s most recent request in relation acceptable noise levels above background noise levels after 10pm which is more stringent than both the State Liquor Act 1992 and Liquor Regulation 2002 and the State Environmental Protection (Noise) Policy 2008.
It is understood that Council has not engaged any suitably qualified and experienced noise consultant to review the reports and advices of the applicant’s noise expert. The applicant has not had any advice from Council that it disagrees with the findings of the original detailed report and subsequent advices as requested by Council.
Queensland Office of Liquor and Gaming Regulation commonly investigate any complaints in relation to licensed premises and issues formal breach notices if any noncompliance is identified. The applicant wishes to highlight that to date the Queensland Office of Liquor and Gaming Regulation has not issued any breach notices against the Village Bicycle Café.
In attempting to recommend conditions of approval for this development application, the most recent Council report and recommendation drew some similarities between mixed use residential, commercial and hospitality development in Hastings Street and the proposed hospitality development on a commercial site and the residential development on a residential site across Bottlebrush Avenue. It is considered that it is not fully appropriate to rely on selected Council’s planning scheme provisions applicable to certain sites fronting Hastings Street and to then transpose these directly onto this development application in order to arrive at approved hours of operation.
At the meeting with Council staff on the 15th February, 2016, Council suggested that a roof be constructed over the proposed outdoor dining area. The applicant has investigated such a suggestion and it is not an option at this stage.
The applicant’s Acoustic Reports were assessed by Council environmental health and planning officers. The principal concern with the applicant’s acoustic assessment is it suggests marginal compliance with acoustic levels based on acoustic modelling. Patron noise was recorded at the premises on Saturday 2nd and Sunday 3rd May 2015, with recording devices visible on the site and known to management.  The modelling indicates allowable patron noise at 3 metres from the source to achieve acceptable limits at receivers is 74dB(A).  The on-site limit required under the Village Bicycle’s current Liquor Licence being 75dB(C) (which is a different frequency weighting).

Staff consider the acoustic modelling results indicate marginal compliance and operational compliance would rely heavily on management to attempt to limit patron noise to the 74dB(A) level late at night at a drinking venue.  As the submission notes, the Acoustic consultant recommendations include:
To ensure compliance with the recommended limits on patron noise emissions, the following noise management measures must be implemented:
Staff actively encourage patrons to keep the noise down; …
By way of comparison, Sogo Bar to the south on Noosa Drive is required to close its outdoor terrace at 10pm each night and for patrons to then be inside behind an airlock.

The proposed increase in the height of the acoustic fence to the Bottlebrush Avenue frontage to 2.4m should offer some appreciable noise attenuation but is unlikely to adequately contain noise.  Figures 1 & 2 below indicate the lines of site from seated and standing positions at the southern end of the outdoor area.  The dummy fence extension shown extends to roughly the eaves height and the balustrade height of the upper level units opposite for seated and standing heights respectively.

Figure 1 - Line of site from seated position showing dummy fence extension at left

Figure 2 - Line of site from standing position showing dummy fence extension at left

Further comment was sought from Office of Liquor and Gaming Regulation (OLGR) staff.  They indicated formal breach action has been in abeyance pending this development application.  OLGR’s Senior Compliance Officer provided the following written statement:

Under section 47 of the Liquor Act 1992, I am able to disclose certain particulars to you, as follows:
A liquor licence was approved over this site on 17 April 2014.
The site was identified as being noise sensitive during the application process and the licence was conditioned so as to require patrons who were consuming liquor in the outdoor area to be restricted by way of having to be seated. The application for the licence advised seating capacity as being 22 indoors and 40 outdoors.
The first noise complaint was received by OLGR on 21 May 2014.
Noise complaints have been ongoing since that time.
Complaints predominantly relate to noise from patrons in the outdoor area.
The licensee attempted some noise attenuation by building a fence, along the boundary line fronting Bottlebrush Avenue, in the latter part of 2014. This did not prove effective.
On 7/3/2015, OLGR established that there was unreasonable noise emanating from patrons in the outdoor area and this was made known to the licensee.
In June 2015, the licensee made application for the abovementioned seating condition to be removed from the liquor licence  and, as a result, OLGR became aware that the Council approved use did not extend to the outdoor area.
OLGR is also aware that submissions have been made to Council in relation to noise attenuation works over the site, to mitigate the patron noise emanating from the premises.
OLGR is awaiting the outcome of the application to Council, to determine the approved use for the outdoor area and any related noise attenuation works, before taking any further action in relation to the noise complaints.
Discussions with OLGR officers indicate noise complaints continue to be received.  Note that once a development permit is issued for this application, enforcement of noise limits will broadly be the responsibility of OLGR.

The applicant’s submission seeks to amend Condition 3 recommended in the previous staff report to allow it to continue to use of the outdoor area to 12pm, 7 days a week.  This change is not supported for the reasons previously identified in the assessment report and the previous recommendation is maintained.

Patron numbers and seating

Recommended Condition 4 would limit outdoor patrons to roughly the observed seating numbers on site (54 seats were counted and 50 were conditioned) and require patrons to be seated.  These provisions aimed to help address patron noise and maintain reasonable expectations for the dining use sought by Village Bicycle under both its planning and liquor applications.  The submission seeks to amend the condition to allow for 70 “allocated” seats.  Notably, OLGR advises the liquor licence application lists seating capacity at 40.  The change is not supported and the previous recommendation is maintained.

Previous Council Consideration
Ordinary Meeting, 11 February 2016, Item 2, Page 7
That Council note the report by the Coordinator Planning to the Planning & Organisation Committee Meeting dated 2 February 2016 and defer consideration of Application No. MCU15/0086 for an Entertainment & Dining Business – Type 1 Food & Beverages at 2 Bottlebrush Avenue, Noosa Heads to a future Council Meeting at the request of the applicant to allow it to provide further detail regarding the use of the outdoor dining areas.

Consultation
External Consultation - Community & Stakeholder
Comments provided by the Office of Liquor and Gaming Regulation are included.
Internal Consultation
Council’s Environmental Coordinator and Public Health Officer provided further assessment comments.

Departments/Sections Consulted:

	Chief Executive Officer	x	Community Services		Corporate Services
	Executive Officer to the Mayor & CEO		Community Facilities		Financial Services
	Executive Support		Community Development		ICT
			Libraries & Galleries		Procurement & Fleet
			Local Laws		Property & Facilities
		x	Waste & Environmental Health		Revenue Services
					
	Executive Office	x	Planning & Infrastructure		
	Community Engagement		Building & Plumbing Services		
	Customer Service		Civil Operations		
	Economic Development		Infrastructure Planning & Design		
	Governance	X	Planning & Environment		
	Human Resources		Strategic Land Use Planning		
	Sustainability				

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT	7 JUNE 2016

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PLANNING & ORGANISATION COMMITTEE MEETING REPORT	DD MONTH YYYY

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT	7 JUNE 2016