Draft as at 18 December 2015 Outdoor Dining Background Paper

Draft as at 18 December 2015

Outdoor Dining Background Paper


Local Government Association of SA

Outdoor Dining Background Paper

Draft as at 18 December 2015

Contents

Introduction 5

Definition 5

Objectives 6

Development of the Guidelines 6

Legislative Context 7

Key Principles 8

Assessment Process 9

Model Guidelines 11

8.1 Physical Layout – Siting and Functional Zones 11

8.1.1 Siting 12

8.1.2 Functional Zones 12

8.2 Road Safety 13

8.3 Accessibility 14

8.4 Outdoor Furniture and Equipment 15

8.5 Entertainment 15

8.6 Liquor Licensing 15

8.7 Smoking 16

8.8 Advertising 17

8.9 Special Conditions 17

8.9.1 Development Approval 17

8.9.1 Heritage and other Significant Areas 17

8.10 Permit Requirements 18

Introduction

South Australia is known across the country for its high quality food, wine and affinity with al fresco dining. The temperate climate in Adelaide and regional centres enables outdoor eating, drinking and entertainment opportunities for most of the year. In addition to being a popular leisure activity, outdoor dining also contributes to the vibrancy and interest of our streets and laneways, attracting tourism and supporting local economies.

Many councils in Adelaide have embraced the increasing interest in outdoor dining from businesses and the hotel industry and developed policies and guidelines to assist businesses to establish appropriate areas as an extension of their trading.

The Local Government Association of South Australia (the LGA) has recognised this growing demand and is supporting councils in the management of legislative, planning and administrative requirements to establish safe, attractive and accessible outdoor dining areas.

To this end, the LGA has worked with a number of metropolitan Adelaide councils with extensive outdoor dining areas to develop a set of model guidelines that all councils can adopt and tailor to their specific requirements.

Definition

Outdoor dining is defined as the use of the public footpath or a public space for the purpose of extending the seating space of an adjacent business whose main function is the provision of food and/or beverages to the public.

Such premises can include restaurants, cafes, bars, hotels, delicatessens and other food and beverage outlets.

Outdoor dining should be directly associated with the business that holds the outdoor dining permit and should only operate when those premises are open for business.

For the purpose of these model guidelines, the definition of outdoor dining does not include parklets. Parklets are small public spaces located on the road reserve (rather than on a public footpath) in one or more on-street parking spaces. They can be initiated by a council or state government agency and can also be installed by adjacent business owners. Due to their different siting and mixed ownership characteristics, they will not be included in the model guidelines.

Further information on parklets can be found at Adelaide City Council (http://www.adelaidecitycouncil.com/parklet).

Objectives

Outdoor dining can significantly enhance the amenity and appeal of public spaces through the creation of vibrant and dynamic streetscapes. It can facilitate leisure and tourism activities, support the local economy and enhance public safety through night-time street activation.

The objective of this document is to provide councils across South Australia with supporting information to develop an effective policy framework for establishing outdoor dining areas in appropriate locations with minimal administration for staff and applicants, drawing on best practice examples from South Australia and interstate.

This document provides various factors for councils to consider in the balancing the needs of all users of public footpaths including safety for road users and pedestrians, accessibility, maintenance of footpaths and kerbs and the creation of attractive and welcoming spaces.

Development of the Guidelines

In July 2014, the LGA convened a forum with the Australian Hotels Association, the Liquor and Gambling Commissioner and a group of councils to discuss issues relating to liquor licensing. It was agreed there would be significant merit in developing model guidelines for outdoor dining for councils to adopt and tailor as necessary to meet the needs of their local context.

A project reference group was formed to support the process of developing the model guidelines comprising the LGA and councils that have large numbers of licenced premises and outdoor dining establishments within main street or entertainment precincts. Five councils from metropolitan Adelaide with developed policies and experience in implementation were selected to participate in the reference group and included:

• 
  Adelaide City Council
  
  • 
    Outdoor Dining Guidelines 2014
    
• 
  City of Charles Sturt
  
  • 
    Outdoor Dining Policy 2013 (supplemented by new Information Sheet), Application for Permit and Permit Conditions forms
    
• 
  City of Holdfast Bay
  
  • 
    Outdoor Dining Policy 2014 (plus City Wide Outdoor Dining Urban Design Guidelines and Moseley Square Outdoor Dining Urban Design Guidelines)
    
• 
  City of Norwood Payneham St Peters
  
  • 
    Outdoor Dining Policy (February 2015)
    
• 
  City of Unley
  
  • 
    Outdoor Dining Policy and Operating Guidelines (2011)
    

The LGA engaged social planning consultancy Gould Thorpe Planning Pty Ltd to undertake a desktop review of these existing policies and guidelines for outdoor dining. This review was further supplemented by telephone interviews with nominated council officers and desktop research on best practice.

The review has subsequently informed the preparation of this outdoor dining background paper, which informs the development of model guidelines for outdoor dining for adaptation by all interested councils.

Legislative Context

The primary legislation relating to outdoor dining is the Local Government Act 1999. Section 222 of the Act requires businesses be authorised by way of a permit from Council before using a public road (including the footpath) for business purposes.

The legislation and provisions below provide the overarching legal context for the provision of outdoor dining and have precedence over any council policy or guidelines. They must also be considered by local government officers when interpreting and implementing their outdoor dining policies and operating guidelines.

• 
  South Australian Local Government Act 1999
  
• 
  South Australian Development Act 1993
  
• 
  South Australian Work Health and Safety Act 2012
  
• 
  Federal Disability Discrimination Act 1992
  
• 
  Australian Standards
  

Liquor licensing and the management of smoking are also key elements that need to considered in the planning, implementation and management of outdoor dining. The relevant South Australian legislation governing liquor licenses and smoking in public places is:

• 
  South Australian Liquor Licensing Act 1997
  
• 
  South Australian Tobacco Products Regulation Act 1997
  

The recent changes to the Liquor Licensing Act 1997 now enable businesses to apply for a licence condition to be removed that required all patrons to be sitting when drinking alcohol outside hotels. This applies to the outdoor dining provisions in these guidelines and will require further management by councils to ensure numbers of people standing in outdoor dining areas does not impact on public safety.

In addition, the Tobacco Products Regulation Act 1997 has been amended to ban smoking in all outdoor dining areas from 1 July 2016. For businesses to maintain a smoking area with a permitted outdoor dining area, they will need to allocate an appropriate non-food service area.

Key Principles

The LGA supports the appropriate use of public footpaths for outdoor dining determined within an assessment process that balances the varying needs of all users.

While the highest priority in approving outdoor dining is maintaining public safety, this is not the only factor to be considered. Public safety can be addressed in various ways while still supporting vibrant and active street life, maintaining accessibility, protecting residential amenity and supporting the local economy. Indeed, the goal for local government is to work with applicants to achieve all of these priorities.

However, there are times when it is not possible to achieve all and so councils must prioritise one over another. While outdoor dining can help create dynamic and lively streets, site constraints (such as high traffic volumes or a narrow footpath) or other issues may prohibit its establishment in certain locations. The order of priority illustrated in the hierarchy below informs these guidelines and provides an effective framework for councils when making decisions on permit applications.

Figure 1: Outdoor Dining Priorities

Source: City of Port Phillip

Each site is unique and will have its own opportunities and constraints, including differing width footpaths and the presence of street trees, driveways, rubbish bins and other street furniture, bus stops and loading zones. Council guidelines should be structured to enable a merit-based assessment of applications that takes into account these obstacles and enables joint development of solutions that achieve safety and accessibility requirements alongside business needs.

Assessment Process

The administrative processes behind the application, assessment and activation of permits for outdoor dining can be time consuming and onerous for both council staff and applicants. In addition, the myriad of legislative and policy considerations, as well as the need to balance public safety against business needs and local amenity considerations, can create a highly complex environment.

The development of streamlined application and assessment processes can assist councils in the management of new outdoor dining areas and administration of annual permit renewals.

A key step in this process is the summarising of any existing council policies and guidelines into a concise (nominally two-page) fact sheet outlining the core requirements and standard conditions for an application, fee schedule, standard conditions of permit and timing. Existing or new outdoor dining guidelines can be retained for use by council staff to assess applications and provided to applicants on request. This can reduce the potential for overwhelming traders with technical information and dissuading them from seeking a permit.

By simplifying the process of applying for a new outdoor dining permit, councils can reduce the staff and time resources required over the duration of the application process and provide greater certainty to applicants. An example of how councils can structure the application, assessment and activation of permits to make best use of staff resources and assist applicants through the process is outlined below.

1. 
   Expression of Interest
   

• 
  Applicant makes contact with council via email, website or telephone and expresses interest in an outdoor dining permit
  
• 
  A short (nominally two-page) summary of the permit assessment process is provided by the council to gauge interest, followed by further documents, which may include:
  
  • 
    fact sheet or Q&A document
    
  • 
    application form and example standard conditions
    
  • 
    detailed guidelines (if requested)
    
• 
  A nominated council officer makes an appointment to meet the business owner to identify siting and layout requirements, road safety issues and any special provisions
  

2. 
   Application and Assessment
   

• 
  The council officer and applicant work together to complete and submit an application for a permit, including detailed site plan, any site-specific conditions, relevant fee and copy of public liability insurance
  
• 
  Council permit officer assesses outdoor dining application. If it is identified as a medium or high risk site, input should be sought from other council officers, which may include an urban planner, traffic engineer, community safety officer and risk management advisor as required
  
• 
  Site-specific conditions identified and added to the permit approval if required
  

3. 
   Application and Assessment
   

• 
  Council issues permit if the application meets the site requirements and provides an acceptable balance between safety, accessibility, business needs, footpath management and amenity
  
• 
  Council officer meets with trader on site to confirm permit requirements and boundary of outdoor dining area. May include installation of footpath markers.
  
• 
  Council officers inspect regularly to ensure compliance with permit conditions
  
• 
  Council provides forms online to enable annual assessment and renewal process
  

The City of Charles Sturt completed a review of its outdoor dining policy in 2015 that resulted in a streamlined application and assessment process that reduces time and uncertainty for applicants with minimal administration for council staff.

Applications should be assessed on a case by case basis, reflecting the individual site requirements and objectives of the applicant.

Model Guidelines

8.1 Physical Layout – Siting and Functional Zones

The siting, layout and alignment of outdoor dining zones are the key factors to determine when assessing how an application balances the needs of councils, businesses and community members.

With the assistance from council staff, applicants should prepare a detailed site plan that clearly defines the functional zones and core dimensions of their proposal. An example site plan from Adelaide City Council is provided below.

Diagram 1: Example Site Plan

8.1.1 Siting

Outdoor dining should be located directly outside the business to which the permit relates, on a section of footpath not required for existing or future public use.

Outdoor dining should be considered where its location, size or layout will not compromise:

• 
  the safety of road users, diners or pedestrians;
  
• 
  public access through the area;
  
• 
  the range of activities currently available on the street; or
  
• 
  the operation of adjacent businesses.
  

Outdoor dining areas are generally located on the kerbside as indicated in Diagram 1 below. This location maximises safety for pedestrians, people with mobility aids and people with a vision impairment who use the building line to navigate.

In some circumstances, councils may consider applications for outdoor dining located on the building frontage. This may be appropriate on streets with low or zero vehicle traffic, with narrow road reserves or in shared use zones (where the roadway is shared by pedestrians and vehicles).

The alignment of any outdoor dining areas approved on a street should be consistent for the entire length of the street.

8.1.2 Functional Zones

An outdoor dining area can be divided into three main functional zones: pedestrian (or footpath) zone, outdoor dining zone and kerb zone, as indicated in Diagram 2.

Diagram 2: Functional Zones

(Source: Adelaide City Council)

Pedestrian Zone:

The Pedestrian Zone is defined as the footpath area required to be kept clear for pedestrian access, located between a building frontage, fence or property boundary and the Outdoor Dining Zone, as shown in cross-hatching above.

Most councils find that a Pedestrian Zone with a minimum width of two (2) metres is required to ensure an accessible path of travel for all people, including those with a disability, mobility aids, bicycle or pram.

Councils may determine after a risk assessment that there are locations in which a Pedestrian Zone of less than two metres can be considered. This could be influenced by the type of street and its traffic volumes, number of pedestrians, existing outdoor dining or goods on footpath, or other site-specific issues.

Outdoor Dining Zone:

This zone refers to the area where outdoor dining is permitted by council. It defines the zone in which all outdoor dining items must be contained, which may include tables, chairs, umbrellas, A-frame signs, planter boxes and screens.

Outdoor Dining Zones must be made accessible for people with a disability in accordance with the DDA 1992 and the relevant Australian Standards. Sufficient space is required around each table to reduce potential congestion, allow safe movements and prevent diners or furniture encroaching into the Pedestrian Zone or Kerb Zone. Minimum circulation space to cater for diners, tables and chairs is generally set at one square metre per person, eg:

• 
  2-person table and 2 chairs = 1m x 2m (total 2m2)
  
• 
  3-person table and 3 chairs = 1.5m x 2m (total 3m2)
  
• 
  4-person table and 4 chairs = 2m x 2m (total 4m2)
  

Kerb Zone:

The Kerb Zone refers to the area located between the outer edge of the roadside kerb and the boundary of the Outdoor Dining Zone, as illustrated in Diagram 2. Its purpose is to provide a safe buffer zone between the roadway and diners in the Outdoor Dining Zone.

Standard widths used by councils for Kerb Zones are 600mm when adjacent to a travel lane or parallel parking area. Increased widths may be required when outdoor dining is proposed adjacent to angle parking, loading zones, bus stops or taxi ranks.

Further information on suggested widths for Kerb Zones can be found in the Outdoor Dining Policy (February 2015) developed by the City of Norwood Payneham St Peters.

Outdoor dining furniture is generally not permitted within the Kerb Zone including tables, chairs, planter boxes, screens and blinds. In contrast, energy-absorbing bollards must be located within the Kerb Zone if they are required to ensure diner safety.

Bollards are generally located a minimum of 600mm from diners and outdoor dining furniture and installed with a gap not exceeding 1.2m between consecutive bollards, however each council will have further detail on their specific requirements for the siting and installation of bollards.

8.2 Road Safety

Road safety is a key issue for councils to consider when assessing applications for outdoor dining. It can be the sole factor that prohibits the establishment of outdoor dining or can result in significant cost outlays for councils and applicants if energy-absorbing bollards are deemed to be required.

Councils should undertake their own safety risk assessment on a case-by-case basis for each new application for outdoor dining and the annual renewal of existing outdoor dining areas. Some councils may also wish to seek the advice of traffic safety risk assessors.

The City of Norwood Payneham St Peters has developed a Site Risk Rating System to assist in the assessment of the level of risk associated with an application for outdoor dining. The system includes the following characteristics:

• 
  Travel lanes adjacent to outdoor dining areas
  
• 
  High traffic volume and/or speed roads
  
• 
  Vehicle crash history
  
• 
  Outdoor dining adjacent roundabouts or on corners
  
• 
  Outdoor dining adjacent four-way intersections
  

Where many of these characteristics are present at a proposed outdoor dining site, bollards will generally be required.

Council staff and applicants should refer to the publication ‘Roadside Dining Protection – A Guideline for local Government Authorities in South Australia’ (2000) produced by the Department of Planning, Transport and Infrastructure for further information on the installation of bollards.

If bollards are required, a traffic engineer should be engaged by the applicant to:

• 
  Design the layout of the dining area
  
• 
  Undertake the footing design
  
• 
  Oversee the installation; and
  
• 
  Certify the works are in accordance with current legislation and the conditions of the council-issued permit.
  

Source: City of Charles Sturt

Approved outdoor dining areas on footpaths must not impact on traffic safety. Sightlines must be maintained for drivers in accordance with the relevant Australian Standard and the AustRoads Guide to Traffic Engineering Practice, and the location of outdoor dining must take into account the surrounding road conditions.

Source: City of Unley Outdoor Dining Operating Guidelines 2011

8.3 Accessibility

Councils should assess the extent to which applications consider accessibility for people with a disability and/or mobility difficulty including people using a wheelchair, motorised mobility aid or with a vision impairment, when designing an outdoor dining area.

Tables, chairs and other items of outdoor dining furniture should not encroach into the Pedestrian Zone or provide any other form of trip hazard. Footpath markers installed by Council can provide clear indication to traders on the external boundary of their approved dining area.

Adelaide City Council has developed an accessibility checklist within its Outdoor Dining Guidelines 2014 to assist applicants in planning for the needs of all people. The checklist provides a practical summary of the key issues to plan for when assessing new applications or renewals and encompasses outdoor dining layout, menus and cutlery, general accessibility and guide/assistance dogs.

Further information on meeting accessibility requirements is contained within Australian Standard 1428 Parts 1, 2, & 4 (2002).

8.4 Outdoor Furniture and Equipment

Outdoor dining furniture should be sturdy, of high quality design and construction and positively contribute to the amenity of the streetscape. All products should be fit for purpose, clean and well-maintained.

Fully removable or semi-fixed (able to be removed without tools when the business is not operating) outdoor dining furniture and equipment is recommended to:

• 
  facilitate council street cleaning;
  
• 
  allow for flexible use of the area at different times;
  
• 
  reduce any perceptions that the public footpath has been privatised; and
  
• 
  maximises pedestrian access when the business is not trading.
  

Source: Adelaide City Council

The requirement for removable furniture can be contentious if only applied to new permits. If this condition is not applied retrospectively to businesses with existing fixed furniture, it can be seen as inequitable by new applicants. The decision on fixed or removable furniture may be influenced by the arrangements of any existing outdoor dining areas on the same street.

Where fixed tables are preferred to minimise the likelihood of permit-holders or diners moving them into the Kerb Zone or Pedestrian Zone and creating safety hazards, they should be sited in coordination with council staff and allow the footpath to be reinstated to its original condition on removal.

8.5 Entertainment

Live entertainment can enhance the attractiveness and vibrancy of outdoor dining areas except if it is amplified, obstructs pedestrian movements or impacts negatively on adjacent traders or local residents. Businesses planning on including live entertainment should have regard to any relevant council policies or regulations, undertake any required approval processes and have the consent recorded as a special condition on their annual permit.

8.6 Liquor Licensing

Applicants should reference their intention to apply for a liquor license within their application to council for an outdoor dining permit. Each council may require a separate approval for the consumption of alcohol and traders will also need to apply to Consumer and Business Services (www.cbs.sa.gov.au/wcm/licensing-and-registration/liquor/).

While patrons are no longer required to be seated to consume alcohol in an outdoor dining area under the Liquor Licensing Act 1997, councils may identify their own conditions to the outdoor dining permit that limit trading hours, the number of tables and chairs or the number (or proportion) of people that can be standing in addition to those seated in an outdoor dining area.

8.7 Smoking

From 1 July 2016, smoking will be banned in outdoor dining areas in South Australia under section 52 of the Tobacco Products Regulation Act 1997. This includes outdoor dining areas at venues such as pubs, cafes, restaurants, fast food outlets and temporary eateries at events.

The new law is designed to protect the community from exposure to potentially harmful tobacco smoke and increase the comfort and enjoyment of outdoor dining areas for all patrons.  

Signs indicating the outdoor area is smoke free must be displayed in such numbers and positions of prominence that they are likely to be seen by people within the area.

Councils can also include these new measures as special conditions in their outdoor dining permits.

Source: SA Health website (http://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/protecting+public+health/tobacco+laws+and+businesses/smoke-free+outdoor+dining+laws)

8.8 Advertising

One of the principles of outdoor dining is that it seeks to make a positive contribution to the streetscape and local amenity. The installation of advertising has the potential to detract from the visual attractiveness of the outdoor dining area. Signage to promote the name of the business may be appropriate in limited areas and can be considered by council in accordance with the Development Act 1993 where relevant.

Third party advertising (ie not related the business) is generally not permitted in outdoor dining areas or on any items of furniture or equipment.

Details of any proposed signage and advertising including menus must be submitted to council as part of the application.

8.9 Special Conditions

8.9.1 Development Approval

Applications for large-scale outdoor dining areas may be assessed as a change of use of the footpath and require a Development Application. Development Approval for such a permit would need to be authorised under the Local Government Act 1999 and be in accordance with any existing Council by-laws in place.

Some applications may include significant furniture installation, such as fixed screens, road safety elements such as bollards, enclosures, shade structures or signage. This may be assessed as building work under the Development Act 1993 and may also require a Development Application.

Applicants should be advised of the requirement for a Development Application, and any associated fees and timeframes for assessment, when preparing their outdoor dining application.

8.9.1 Heritage and other Significant Areas

Outdoor dining proposed in or adjacent to heritage or conservation areas should be of appropriate size and character to complement the existing amenity. In addition, outdoor dining applications in or nearby to established entertainment precincts or other designated areas should have regard to the specific siting, layout and design requirements already in place.

Applications for outdoor dining in heritage or other significant areas may require specialist input and involvement from additional officers including heritage advisors, development assessment planners or community safety officers.

8.10 Permit Requirements

Outdoor dining permits are generally approved for a period of twelve months and apply to a financial year or the relevant pro rata portion. Permits may be revoked or amended by council if:

• 
  traders fail to comply with the general and specific conditions attached to the permit
  
• 
  changed conditions in the street or precinct, such as traffic volumes or car parking, result in negative impacts on outdoor dining areas
  
• 
  other issues arise requiring amendment or cancellation such as council streetscape upgrades or installation of new street furniture.
  

Permits must be renewed on an annual basis and ideally through an online process to minimise administrative paper work for council staff and applicants. Permits should only be renewed if applicants can demonstrate continued adherence to the permit conditions and maintenance of public safety and access.

Applicants must hold relevant public liability insurance and ensure it notes council as an interested party. Insurance is generally required for the minimum amount of $20 million and must cover injury, loss or damage to persons or property.

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