-  

Report on Review of Policy for Use of Road Reserves and Public Land for Commercial, Community and Charitable Activities

Attachment 2

15077/2008 Draft Approvals Policy

 

 
Nambucca Shire Council

 

DRAFT

 

 

 

APPROVALS POLICY

 

 

 

 

USE OF ROAD RESERVES AND PUBLIC LAND FOR COMMERCIAL, COMMUNITY AND CHARITABLE ACTIVITIES

(2006)

 

 

 

Prepared by:

Department of Environment & Planning February 2006

 

Adopted by Council:                   ……………………..

Effective from:                            …………………….


 

 


  -  

Report on Review of Policy for Use of Road Reserves and Public Land for Commercial, Community and Charitable Activities

Attachment 2

15077/2008 Draft Approvals Policy

 

TABLE OF CONTENTS

 

 

1.0        INTRODUCTION.............................................................................................................................................................. 5

1.1     Purpose of Policy........................................................................................................................................... 5

1.2     Disability Discrimination Act.............................................................................................................. 5

1.3     Application of Policy................................................................................................................................. 5

1.4     Objectives of Policy..................................................................................................................................... 6

1.5     Existing Activities........................................................................................................................................ 6

1.6     Definitions......................................................................................................................................................... 7

2.0        A-FRAME SIGNS.............................................................................................................................................................. 8

2.1     Statutory Framework............................................................................................................................. 8

2.2     Controls............................................................................................................................................................. 8

2.3     Approvals.......................................................................................................................................................... 8

3.0        TRADING TABLES AND THE LIKE............................................................................................................................. 9

3.1     Statutory Framework............................................................................................................................. 9

3.2     Controls............................................................................................................................................................. 9

3.3     Approvals........................................................................................................................................................ 10

4.0        OUTDOOR EATING AREAS....................................................................................................................................... 11

4.1     Statutory Framework........................................................................................................................... 11

4.1.1  Environmental Planning and Assessment Act 1979 (including Nambucca Local Environmental Plan 1995)           11

4.1.2  Local Government Act 1993..................................................................................................................... 11

4.1.3  Roads Act 1993 (Sections 125 & 126)................................................................................................... 11

4.2     Controls........................................................................................................................................................... 12

4.2.1  Location........................................................................................................................................................ 12

4.2.2  Furniture...................................................................................................................................................... 12

4.2.3  Management Issues..................................................................................................................................... 13

4.2.4  Car Parking................................................................................................................................................. 13

4.3     APPLICATION PROCESS.................................................................................................................................. 13

4.3.1  Development Application.......................................................................................................................... 13

4.3.2  Licence.......................................................................................................................................................... 14

5.0        STREET VENDING......................................................................................................................................................... 15

5.1     Statutory Framework........................................................................................................................... 15

5.1.1  Roads Act 1993........................................................................................................................................... 15

5.1.2  Local Government Act 1993..................................................................................................................... 15

5.2     Controls for Community Organisations and Charities................................................... 16

5.3     Approvals for Community Organisations and Charities................................................ 16

5.4     Controls for Commercial Operators........................................................................................... 17

5.5     Approvals for Commercial Operators......................................................................................... 17

6.0        CRAZY DAY SALES...................................................................................................................................................... 18

6.1     Statutory Framework........................................................................................................................... 18

6.2     Controls........................................................................................................................................................... 18

6.3     Approvals........................................................................................................................................................ 18

7      USE OF COMMUNITY LAND ........................................................................................................................................... 19

7.1     Statutory Framework........................................................................................................................... 19

7.1.1  Local Government Act................................................................................................................................ 19

7.1.2  Environmental Planning and Assessment Act....................................................................................... 20

7.2     Controls........................................................................................................................................................... 20

7.3     Approvals/Lease or Licence.................................................................................................................. 20

8.0        USE OF ROADS FOR EVENTS................................................................................................................................... 21

ACKNOWLEDGEMENTS............................................................................................................................................................. 22

 

 


 


  -  

Report on Review of Policy for Use of Road Reserves and Public Land for Commercial, Community and Charitable Activities

Attachment 2

15077/2008 Draft Approvals Policy

 

1.0      INTRODUCTION

 

1.1       Purpose of Policy

 

This Policy has been prepared to provide guidance on the commercial, community and charitable use of road reserves and public land within Nambucca Shire Council. The Policy covers the use of public footpaths and public land for A-frame signs, outdoor eating areas, street vending, trading tables and the like, the use of public areas by charities and community groups for street stalls, selling of raffle tickets and the like, crazy day sales and the use of community public land and roads (for events).

 

 

1.2       Disability Discrimination Act

 

The Disability Discrimination Act is a federal law which can be used to address discrimination in many areas of public life. The Act makes it illegal for anyone to treat a person with a disability unfairly. People who are relatives, friends and carers of people with a disability are also protected by the Act.

 

The Act aims to remove barriers in the physical environment and in the attitudes and practices of people and organisations that limit people with disabilities from participating in everyday life. The Act can be used to obtain fair treatment in many areas of life including gaining or using services including those provided by government (including local government) and this includes gaining access to public places.

 

Section 23 of the Act relates to the provision of access to premises. A person with a disability has a right to have access to places used by the public and the Act makes it illegal for public places to be inaccessible to people with a disability. These places that are used by the public include (among other things) public footpaths and walkways. Non compliance with the Act is only permitted where it can be demonstrated that compliance with the Act would result in ‘unjustifiable hardship’.

 

The Act also allows service providers such as Council to prepare Disability Action Plans. The purpose of these Plans is to assist service providers in eliminating discrimination in the goods and services they provide and thereby achieving the objectives of the Act.

 

Council adopted a Disability Action Plan on 5 February 2004. One of the strategies of Council’s Plan is ‘to ensure that Council has a footpath policy which considers the needs of people with disabilities. This new Policy serves to address this matter. It is timely that Council prepare this Policy to address its obligations under the Act and to address the commitment that has been made through the Plan to consider the needs of people with disabilities in the review of the existing footpath policy. It is also important that those persons or business affected by this Policy are aware that the Disability Discrimination Act exists and that they also have an obligation to people with disabilities.

 

 

1.3       Application of Policy

 

This Policy applies to all land within the Nambucca Local Government Area where it is proposed to:

 

§  Place on the road reserve an A-frame sign, trading table or the like associated with or ancillary to an approved business in any zone under the Nambucca Local Environmental Plan 1995 or in any subsequent Local Environmental Plan;

 

§  Establish an outdoor eating area on the road reserve or public land;

 

§  Place a street stall and the like for a community or charitable organization on the road reserve in the 3(a) General Business zone and in the Bowraville 2(v) Village Zone, under the Nambucca Local Environmental Plan 1995 or equivalent zoning in any subsequent Local Environmental Plan;

 

§  Operate a commercial street vending activity (other than street stalls and the like, operated by community organisations and charities) on the road reserve in the 2(v) Residential (Village), 3(a) General Business, 4(a) General Industrial or 4(b) Industrial (Business) zones under the Nambucca Local Environmental Plan or equivalent zonings in any subsequent Local Environmental Plan;

 

§  Operate a ‘crazy day sale’ on the road reserve in the 3(a) General Business zone and in the Bowraville 2(v) Village Zone Bowraville, under the Nambucca Local Environmental Plan 1995 or equivalent zoning in any subsequent Local Environmental Plan; and

 

§  Use of public land (community) for a permissible use under the Nambucca Local Environmental Plan 1995 or any subsequent Local Environmental Plan and a use specified by the relevant Plan of Management.

 

 

It should be noted that a reference to the road reserve includes the public footpath and public nature strip.

 

This Policy does not apply to street furniture, bus shelters and the like constructed by or on behalf of Council.

 

 

1.4       Objectives of Policy

 

§  To regulate the use of the road reserve and public land and to provide guidelines for their use.

 

§  To ensure a clear and safe footpath area is maintained for pedestrians.

 

§  To provide guidance for the location of private activities, carried out on public land and the road reserve.

 

§  To maintain streetscape amenity and minimise visual clutter.

 

 

1.5       Existing Activities

 

Prior to the adoption of this Policy by Council, Council’s Environment and Community Services Policy No 7 – Footpath Signage, Trading and Café Tables and Chairs (adopted June 1996 and reviewed November 2001) applied to many of the activities covered by this Policy. However, the previous Policy had different approval requirements and in some cases, did not cover some of the activities covered by this new Policy. In addition to this, Council’s Development Control Plan 10 – Exempt and Complying Development (DCP 10) (adopted by Council on 19 July 2001), has previously allowed ‘commercial use of footpaths or roads’ as exempt development meaning that development consent has not been required for outdoor eating areas.

 

Upon adoption of this Policy, all existing activities except for the existing outdoor eating areas must comply with the new approvals and licensing process. This will be done as that particular activity is required to have its licence renewed.

 

Existing outdoor eating areas that have complied with the conditions for exemption under the original version of DCP 10 adopted by Council 19 July 2001 will not be required to obtain Development Consent as required under this Policy. The conditions for exemption from development consent under the original version of DCP 10 were:

 

§  On Council-owned land and in accordance with terms and conditions of a permit or approval obtained from the Council prior to use; and

§  Complies with the standards of the Food Act 1989 and Council’s “Food Premises Code and Requirements for One-Day Food Stalls” adopted 7 July 1995.

 

This exemption under DCP 10 only applies to the existing outdoor eating areas in the form in which they were licensed at the time that this Policy was adopted ie the area that it occupied, number of tables and chairs. Where it is intended to increase the size of the outdoor eating area or increase the numbers of tables and chairs, then Development Consent will be required for this intensification, expansion and/or enlargement of the land use.

 


As DCP 10 only exempts certain forms of development from obtaining Development Consent under the Environmental Planning and Assessment Act, all existing legally established outdoor eating areas will need to obtain Local Government Act and Roads Act approval at the time that their annual licence is due for renewal, if these approvals have not already been obtained. Outdoor eating areas will need to make new applications under the Local Government Act and the Roads Act every 5 years (or for a shorter period if specified by Council).

 

All new outdoor eating areas must comply with this Policy.

 

 

1.6       Definitions

 

Built-up Areas – as defined by Section 139A(3) of the Roads Act 1993, meaning a public road that is lit by street lighting located at intervals of not more than 100 metres for a distance of not less than 500 metres.

 

General Advertisingmeans for the purpose of this Policy, advertising displayed on an “A” frame sign on the road reserve adjacent to a business that does not relate to:

 

§   The use of the premises or land on which the business is operated; and

§   Goods or services sold or provided from such premises or land from which the business is operated.

 

Crazy Day Sale – for the purpose of this Policy is considered to be a sale held on one particular day for no more than four days in one calendar year where trading tables, clothing racks and the like (in addition to those which exist and are licensed under this Policy) are placed on the public footpath and usually display discounted goods. The crazy day sale may or may not be held in conjunction with a general promotion of the town or a particular time of the year (eg Christmas).

 

Public Land – as defined in the Local Government Act 1993, meaning any land (including a public reserve) vested in or under the control of the council, but does not include:

 

a        a public road; or

b       land to which the Crown Lands Act 1989 applies; or

c       a common; or

d       land subject to the Trustees of Schools of Arts Enabling Act 1902; or

e       a regional park under the National Parks and Wildlife Act 1974.

 

Refreshment Room – as defined in the Nambucca Local Environmental Plan 1995 meaning a restaurant, café, tea room, eating house or the like.

 

Restaurant – where it is used in relation to the Roads Act 1993 means a premises in which food is regularly supplied on sale to the public for consumption on the premises.

 

Street Vending Consent – means a consent under Part 9 Division 3 of the Roads Act 1993 that is subject to a condition referred to in Section 139A of the same Act.

 

 


2.0      A-FRAME SIGNS

 

2.1       Statutory Framework

 

In accordance with Section 68 of the Local Government Act 1993, Council’s approval is required for certain activities that are listed in the table under that Section. Part E2 of Section 68 states that a Local Government Approval is required to:

 

Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road.

 

A Section 68 approval under the Local Government Act is therefore required for an A-frame sign placed within the road reserve in accordance with the guidelines outlined in this Policy.

 

 

2.2       Controls

 

The following controls apply to the placement of an A-frame sign within the road reserve where it is associated with or, ancillary to an approved business in any zone under the Nambucca Local Environmental Plan 1995 or equivalent zonings in any subsequent Local Environmental Plan:

 

§   Only one sign is permitted per business;

 

§   The maximum size of the advertising area is 900mm x 600mm;

 

§   In areas where there is parallel parking, the sign must be located 600mm from the kerb. In areas where there is angle parking, the sign must be located 750mm from the kerb;

 

§   No signs are permitted along the front property boundary of the approved business (ie the shoreline of the building). In this regard a minimum of 1800mm unimpeded footpath width is to be maintained at all times measured from the shop front (except River Street, Macksville where a minimum 1200mm be maintained). Where the minimum unimpeded footpath width cannot be achieved, the sign will be refused;

 

§   The sign must relate to the business in front of which the sign is placed. No general advertising is permitted;

 

§   Each sign shall be of rigid construction or where made of fabric shall have a frame capable of withstanding strong winds commonly occurring in the area so as not to be blown over;

 

§   Should the location of the sign obstruct the operation of public amenities (such as bus stops, taxi ranks, pram/wheelchair ramps, pedestrian crossings, parking spaces for persons with a disability etc), the application will be refused.

 

2.3       Approvals

 

§   All A‑frame signs are required to be approved in accordance with Section 68(3) Part E2 of the Local Government Act. Council will issue the approval in accordance with Section 103(3) of the Local Government Act for a 12 month period. At the end of the 12 month period, Council is able to extend the approval in accordance with Section 107 of the Act.

 

§   In addition to the Section 68 approval, all A‑frame signs are required to be licensed. The licensing of the sign will occur in conjunction with the approval of the sign under the Local Government Act (ie on an annual basis).

 

§   One fee and one application form apply to the Local Government Act approval and the licensing of the sign. The fee for the approval and licensing of the A‑frame sign is set out in Council’s Management Plan.

 

§  
In accordance with Section 78 of the Local Government Act, landowner’s consent is required to be submitted with the application form in order to obtain an approval under the Local Government Act. In most cases, Council will be the owner of the land.

 

§   The application will be required to be submitted with supporting information. This information will include a photo and/or a sketch of the sign with details of the dimensions and location of the sign.

 

§   The owner is responsible for ensuring that the sign has approval and has been licensed by Council and that this is renewed on an annual basis prior to the lapsing of the licence. These signs are regularly inspected by Council staff to ensure compliance.

 

§   A ‘registration disc’ will be issued by Council once the Local Government Act approval and the licence is issued for the sign. Council’s registration disc must be attached to the sign.

 

§   The owner of the sign, listed on the insurance policy is responsible for obtaining Public Liability Insurance of not less than $10 million. Nambucca Shire Council is to be noted as an interested party on the Insurance Policy. A Certificate of Currency must be submitted to Council annually. Requirements for insurance may change on an annual basis depending on advice from Council’s Insurance Broker.

 

§   Council’s registration year is from 1 October to 30 September. Fees paid between 1 October and 31 March will be as indicated on the application form. Fees paid between 1 April and 31 July will be 50% of those indicated on the application form (for a 6 month licence). Fees paid and approvals granted, between 1 August and 30 September will carry over to the following registration year.

 

 

3.0      TRADING TABLES AND THE LIKE

 

3.1       Statutory Framework

 

In accordance with Section 68 of the Local Government Act 1993, Council is required to approve certain activities that are listed in the table under that Section. Part E2 of Section 68 states that a Local Government Approval is required to:

 

Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road.

 

A Section 68 approval under the Local Government is therefore required for trading tables and the like, associated with an existing shop/business, but placed within the road reserve in front of the shop.

 

 

3.2       Controls

 

The following controls apply to the placement of a trading table and the like (such as clothes racks) on the road reserve in association with or, ancillary to an approved business in any zone under the Nambucca Local Environmental Plan 1995 or in any subsequent Local Environmental Plan.

 

§   A maximum of two trading tables or the like are permitted for any one business with a maximum size of 1800mm x 600mm;

 

§   The trading table is to be located adjacent to the kerb area (as required above) in front of the business that the trading table relates to;

 

§   In areas where there is parallel parking, the trading table must be located 600mm from the kerb. In areas where there is angle parking, the trading table must be located 750mm from the kerb.

 

§   No trading tables are permitted along the front property boundary of the approved business (ie the shoreline of the building). In this regard, a minimum of 1800mm width of unimpeded pedestrian footpath is to be maintained at all times, measured from the shop front (except River Street, Macksville where a minimum 1200mm be maintained). Where the minimum unimpeded footpath width cannot be achieved, the trading table will be refused;

 

§   Should the location of the trading table obstruct the operation of public amenities (such as bus stops, taxi ranks, pram/wheelchair ramps, pedestrian crossings, parking spaces for persons with a disability etc), the application will be refused;

 

 

§   The business operating the trading table is responsible for ensuring that the area is maintained in a clean and tidy manner. Rubbish is to be regularly removed and placed in the waste bin for that business; and

 

§   The table must only be placed on the public footpath during the hours of operation of the business that it relates to. The table must be stored off the public footpath outside the hours of operation.

 

 

3.3       Approvals

 

§   All trading tables and the like are required to be approved in accordance with Section 68(3) Part E2 of the Local Government Act. Council will issue the approval in accordance with Section 103(3) of the Local Government Act for a 12 month period. At the end of the 12 month period, Council is able to extend the approval in accordance with Section 107 of the Act.

 

§   In addition to the Section 68 approval, all trading tables and the like are required to be licensed. The licensing of the trading table and the like will occur in conjunction with the approval of the trading table and the like under the Local Government Act (ie on an annual basis).

 

§   One fee and one application form apply to the Local Government Act approval and the licensing of the trading table and the like. The fee for the approval and licensing of the trading table and the like is to be set out in Council’s Management Plan.

 

§   In accordance with Section 78 of the Local Government Act, landowner’s consent is required to be submitted with the application form in order to obtain an approval under the Local Government Act. In most cases, Council will be the owner of the land.

 

§   The application will be required to be submitted with supporting information. This information will include a photo and a sketch of the trading table and the like with details of the dimensions and location.

 

§   The owner is responsible for ensuring that the trading table has approval and has been licensed by Council and that this is renewed on an annual basis prior to the lapsing of the licence. These trading tables are regularly inspected by Council staff to ensure compliance.

 

§   A ‘registration disc’ will be issued by Council once the Local Government Act approval and the license is issued for the trading table and the like. Council’s registration disc must be attached to the trading table and the like.

 

§   The owner of the sign, trading table, etc listed on the insurance policy is responsible for obtaining Public Liability Insurance of not less than $10 million. Nambucca Shire Council is to be noted as an interested party on the Insurance Policy. A Certificate of Currency must be submitted to Council annually. Requirements for insurance may change on an annual basis depending on advice from Council’s Insurance Broker.

 

§   As Council’s registration year is from 1 October to 30 September fees paid between 1 October and 31 March will be as indicated on the application form. Fees paid between 1 April and 31 July will be 50% of those indicated on the application form (for a 6 month licence). Fees paid and approvals granted, between 1 August and 30 September will carry over to the following registration year.

 

 


4.0      OUTDOOR EATING AREAS

 

4.1       Statutory Framework

 

The following outlines in general terms, the requirements of each of the specific legislation that relate to outdoor eating areas.

 

 

4.1.1      Environmental Planning and Assessment Act 1979 (including Nambucca Local Environmental Plan 1995)

 

A Development Application is required to be submitted for any proposed outdoor eating area. A Development Application is required to be submitted as additional ‘floorspace’ from the outdoor eating area constitutes an enlargement and expansion of a land use and therefore requires Development Consent from Council. Outdoor eating areas will only be considered where they are in association with or, ancillary to an approved food premises or refreshment room.

 

All Development Applications are required to be submitted with the consent of the landowner. Many outdoor eating areas are proposed on a public road reserve or public land, for which the consent of the Nambucca Shire Council (as the owner of the land) will usually be required.

 

All Development Applications will be considered in accordance with Section 79C of the Environmental Planning and Assessment Act.

 

4.1.2      Local Government Act 1993

 

Public Land

 

Where an outdoor eating area is proposed on ‘public land’ (as defined by the Local Government Act 1993) and it is classified as ‘community land’, Part 7 of this Policy will apply. Outdoor eating areas proposed on public land that is classified as ‘operational land’ are not subject to any additional controls under the Local Government Act 1993 unless other Section 68 approvals are required.

 

Section 68 Approvals

 

The Local Government Act 1993 also specifies approvals that must be obtained under this Act. Section 68 of the Local Government Act 1993 requires the following approvals to be obtained from Council (as they would apply to an outdoor eating area):

 

§  Structures or places of public entertainment ‑ use a building or temporary structure as a place of public entertainment or permit its use as a place of public entertainment (only likely to be required in a very limited number of circumstances);

 

§  Use of community land ‑ where the use is proposed on public land classified as community; and

 

§  Public roads ‑ expose or allow to be exposed (whether for sale or otherwise) any article in or on so as to overhang any part of the road or outside a shop window or doorway abutting the road or hang an article beneath an awning over the road.

 

An approval under the Local Government Act can only be issued for a maximum of 5 years (s103(1)). Council is able to extend the approval after the 5 years (s107).

 

4.1.3      Roads Act 1993 (Sections 125 & 126)

 

The Roads Act allows Council to grant an approval for an outdoor eating area where there is a restaurant adjacent to a footway of a public road and it is proposed to use part of the footway for the purposes of a ‘restaurant’ ie outdoor eating area. Council is able to approve such use subject to the imposition of conditions and these conditions may also include payments for the purposes of rent.

 

Where an outdoor eating area is proposed on a footway that forms part of a classified road, Council is required to obtain the concurrence of the Roads and Traffic Authority.

 

Council can only grant an approval for a period not exceeding 7 years and this is to be specified in the approval. When the approval lapses at the end of this time or the use of the footway as an outdoor eating area ceases (within this 7 year period), it is considered that the use has ceased.

 

If this occurs, further approval is required from the Council including the submission of a new Development Application.

 

Council is able to authorise the holder of the approval for the outdoor eating area to erect and maintain structures in, on or over any part of the footway the subject of the approval, or may at the request and cost of the holder of the approval, erect and maintain any such structure.

 

In addition to these provisions, the Roads Act 1993, also contains provisions regarding the extension of consent, erection of structures etc. Council may, in some circumstances, need to enact these provisions in relation to outdoor eating areas.

 

 

4.2       Controls

 

The following controls apply where it is proposed to establish an outdoor eating area on the road reserve (ie public footpath) or public land (community) but only where that outdoor eating area will be in association with or, ancillary to an approved food premises, refreshment room or the like.

 

4.2.1      Location

 

§  All furniture associated with the outdoor eating area is to be contained within the approved area. It is the responsibility of the business operator to ensure that the outdoor eating area is confined to the approved area (including any umbrella canopies, pot plants etc);

 

§  In areas where parallel parking exists the outdoor eating area must be located a minimum of 600 mm from the roadside kerb. In areas where angle parking exists, the outdoor eating area must be located a minimum of 750mm from the roadside kerb;

 

§  A minimum of 1800mm width of unimpeded pedestrian footpath is to be maintained, measured from the shop front (except River Street, Macksville where a minimum 1200mm be maintained). Where the minimum unimpeded footpath width cannot be achieved, the outdoor eating area will be refused;

 

§  The outdoor eating area shall not restrict access to public facilities such as bins and seating.

 

4.2.2      Furniture

 

§  The layout of the furniture is to be suitable for the space in which it is proposed to be placed;

 

§  It is preferable that chairs not be placed with their backs to the road;

 

§  The furniture (ie tables, chairs and umbrellas) shall be powder coated or polished aluminium; powder coated, brushed or stainless steel; natural or painted timber or canvas. In terms of public safety and contribution to streetscape, furniture constructed solely of plastic, resin and other lightweight materials will not be permitted;

 

§  Surfaces of tabletops shall be non-reflective;

 

§  Umbrellas must have mechanisms to ensure that they are at all times securely fixed to withstand wind and they must be removed or closed in extremely windy conditions;

 

§  The underside of umbrellas must be a minimum 2 m above the ground level and the umbrellas must be a minimum height overall of 2.2 m. Umbrellas must not protrude over roadway;

 

§  Planter boxes used as delineators or for privacy are permitted and must be kept within the approved outdoor eating area. Plastic pots are not permitted and the overall height of the planter box and plants is not to be greater than 1m. It is the responsibility of the business operating the outdoor eating area to ensure that the plants are maintained in a healthy and safe state; and

 

§  Outdoor advertising on the furniture or within the outdoor eating area is only permitted in accordance with Council’s Development Control Plans (DCP 2 - Advertising Sign Code and DCP 10 - Exempt and Complying Development.

 

4.2.3      Management Issues

 

§  All outdoor furniture associated with the outdoor eating area is to be stored off the pedestrian footpath/public area outside the hours of operation of the café/restaurant/refreshment room.

 

§  All furniture, plantings etc are to be maintained in a physically safe and sound and aesthetically acceptable condition to Council’s satisfaction.

 

§  The business operating the outdoor eating area is to be responsible for all waste collection from the restaurant area. The public waste bins are not to be used for the disposal of waste from the business.

 

§  The business operating the outdoor eating area is responsible for the cleaning of the outdoor eating area. Cleaning of the outdoor eating area is not to involve the sweeping of waste into the gutter or the adjacent public footpath.

 

§  Sub-letting will not be permitted under any circumstance.

 

§  Where lighting of the outdoor eating area is required, the lighting is to be provided to Council’s satisfaction.

 

§  All outdoor eating areas shall be smoke free environments.

 

4.2.4      Car Parking

 

The Applicant will be required to provide on-site parking in accordance with the parking requirements for a restaurant/refreshment room in accordance with Council’s Development Control Plan 1 - Off Street Parking (2004). Where parking cannot be provided, contributions in accordance with any relevant Section 94 Plan will apply.

 

 

4.3       APPLICATION PROCESS

 

4.3.1      Development Application

 

As previously stated a Development Application is required to be submitted for the proposed use of land. The consent of the land owner is required and in most cases, Council will be the land owner in addition to being the consent authority.

 

Council must take into consideration those matters listed under Section 79C of the Environmental Planning and Assessment Act 1979, which includes the relevant planning instruments, and relevant Council Development Control Plans and Policies.

 

Council has a guide sheet that will assist you with preparing your Development Application. Further details have been included in this Policy regarding information that is to be submitted with a Development Application specifically for outdoor eating areas. In general, this is to include the following items:

 

§  A plan showing the location of the outdoor eating area. This plan is to be drawn to scale;

 

§  Details of the method to be used to delineate the outdoor eating area;

 

§  A dimensioned plan showing the layout of the outdoor eating area including the tables, chairs, planter boxes and umbrellas; and

 

§  Details/description of the type of chair, table, umbrella and planter box to be used. In some cases, pictures of the type of furniture may be the best way to show this.

 

Modification of Development Consent

 

It should also be noted that any proposal to enlarge, expand or intensify the outdoor eating area may require a modification to any Development Consent. Therefore, should Development Consent be issued for a particular outdoor eating area, any increase in table/chair numbers, increase in footpath area etc may require a modification of Development Consent or a new Development Application to be submitted to Council.

 

This requirement applies to any existing outdoor eating areas that were established as exempt development in accordance with the original version of DCP 10 (dated 19 July 2001) where it is proposed to enlarge, expand or intensify the use. In these cases, a Development Application will be required to be submitted.

 

Section 68 Approval

 

An approval under Section 68 of the Local Government Act can be sought at the same time a Development Application is lodged with Council. The Development Application requires the Applicant to nominate whether a Section 68 approval is required at the same time as they are seeking Development Consent. It should be noted that not all Section 68 approvals can be obtained with a Development Consent (in particular Part D Section 68 – Use of Community Land).

 

Roads Act Approval

 

An approval under Section 125(a) of the Roads Act can be sought at the same time a Development Application is lodged with Council. The Application will consider in accordance with the provisions of Part 9 Division 1 of the Roads Act that relate specifically to ‘footway restaurants’ (as described in the Roads Act). It should be noted that where the ‘footway restaurant’ is to be on a classified road, the concurrence of the Roads and Traffic Authority required.

 

The Roads Act and the Local Government Act specify that their approvals lapse after 7 and 5 years respectively. As these approvals would lapse at different times under their respective legislation, approvals under these Acts will lapse after 5 years. This allows for both of these approvals to be obtained at the same time.

 

4.3.2      Licence

 

§  A licence is required to be obtained from Council.

 

§  All costs associated with the preparation of the licence (by Council’s Solicitor) must be met by the intended licensee.

 

§  The licence must specify that the proposed outdoor eating area is in accordance with the Development Consent issued by Council for the proposed use (to ensure that the number of tables, chairs, location etc is consistent with the Development Consent).

 

§  The licence will be for a 12 month period with an option to renew the licence for a second year.

 

§  Rental for the use of Council owned/controlled land shall be at market value determined by the State Valuation Office (SVO) and reviewed by the SVO every five years. Rental increases in between those five year periods are to be in accordance with the Consumer Price Index. All costs associated with the valuation are to be borne by the licensee/proponent.

 

§  The business owner operating the outdoor eating area is responsible for obtaining Public Liability Insurance of not less than $10 million. Nambucca Shire Council is to be noted as an interested party on the Insurance Policy. A Certificate of Currency must be submitted to Council annually. Requirements for insurance may change on an annual basis depending on advice from Council’s Insurance Broker.

 

§  All documentation regarding the licence is to be kept on the business premises at all times. A copy of the licence is to be displayed prominently within the business for which the Licence has been granted.


5.0      STREET VENDING

 

5.1       Statutory Framework

 

5.1.1      Roads Act 1993

 

Under Section 138 of the Roads Act 1993, certain works and structures cannot be erected and/or undertaken without the consent of the appropriate roads authority (being either Council or the Roads and Traffic Authority). The general terms of the consent are determined by Section 139 of the Roads Act. Section 139A of the Roads Act allows the road authority to issue a consent which imposes conditions permitting the use of a structure within the road reserve and located in a built up area (see definitions section of this Policy) for the purpose of selling any article or service and requiring the payment of rent (thereby permitting street vending). Consents under the Roads Act for street vending are referred to as ‘street vending consents’ and these can only be issued for maximum period or 7 years (S139A(2)). Whilst Section 139A specifically applies to street vending in built up areas it does not prevent Council from consenting to street vending in the road reserve and outside a built up area.

 

In addition to these provisions, the Roads Act 1993, also contains provisions regarding the revocation of consents, extension and transfer of street vending consents and other consents under this Part, specifies matters to be taken into consideration, the maintenance of works and structures etc. Council may, in some circumstances, need to enact these provisions in relation to street vending activities.

 

The Roads Act (s139F) also specifies that when considering whether to grant consent to a street vending activity within a non built up area it must comply with the ‘Guidelines for the Control and Operation of Street Vending’ (1993) issued jointly by the Roads and Traffic Authority and the Department of Local Government. These Guidelines define street vending as:

 

The setting up or use within the road reserve of any box, stall, stand, barrow or stationary vehicle, other than a ‘roadside stall’ or ‘mobile vending vehicle’ defined hereunder, for the purpose of offering for sale any goods, or for the pursuit of any business, calling or employment’.

 

The Guidelines state that examples of street vending include:

 

§   Sale of fruits and vegetables from barrows on a footpath;

§   Sale of newspapers from a stand on a footpath;

§   Sale of food and drinks from a stall or a stationary vehicle near a tourist area, sporting complex or the like;

§   Sale of goods from a box, stall or stand located on a footpath (this activity is often conducted by charitable organisations in commercials areas)

§   Sale of any goods from a stall, stand or stationary vehicle located in a kerbside lane or on the side of a road.

 

Whilst the Roads Act (s139F) states that the Guidelines apply to street vending within a non built up area, Council will apply these Guidelines (where relevant) when assessing an application for street vending within a built up area.

 

The Roads Act also requires that structures associated with the street vending must be maintained and if the structure affects the surface of the road (including the footpath) then the road surface must be maintained so as to allow a smooth passage of traffic.

 

It is noted that there are very few street vendors in Nambucca Shire, however charitable organisations do operate vendors on a regular basis.

 

5.1.2      Local Government Act 1993

 

In accordance with Section 68 of the Local Government Act 1993, Council is required to approve certain activities that are listed in a table under this Section. Part E2 of Section 68 states that a Local Government Approval is required to:

 

Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road’.

 

A Section 68 approval under the Local Government is therefore required for street vending within the road reserve. An approval under the Local Government Act can be granted for a maximum of 5 years (s103) but this can be extended after the 5 years (s107).

 

The Roads Act and the Local Government Act specify that their approvals lapse after 7 and 5 years respectively. As these approvals would lapse at different times under their respective legislation, approvals under these Acts will lapse after 5 years. This allows for both of these approvals to be obtained at the same time.

 

5.2       Controls for Community Organisations and Charities

 

The following controls apply to the placement of a street stall and the like on the road reserve by a community or charitable organization in the 3(a) General Business zone and in the 2(v) Residential (Village) Zone at Bowraville under the Nambucca Local Environmental Plan or equivalent zoning in any subsequent Local Environmental Plan.

 

§  A minimum of 1.8 metres unimpeded pedestrian footpath is to be maintained (except River Street, Macksville where a minimum 1200mm be maintained). The street stall and the like may operate from the shopfront side of the footpath;

 

§  The street stall or the like is to be located in accordance with the areas approved by Council in accordance with Section 68 of the Local Government Act and Section 139 and 139A of the Roads Act;

 

§  The operator of the street stall or the like is responsible for ensuring that the area is maintained in a clean and tidy manner.

 

§  The street stall or the like may only be operated during hours that are generally consistent with the standard business hours within that town centre.

 

§  In non built up areas, Council must under the Roads Act consider the ‘Guidelines for the Control and Operation of Street Vending’ (1993). In built up areas, Council will apply these Guidelines where it is considered appropriate.

 

 

5.3       Approvals for Community Organisations and Charities

 

§  The Chamber of Commerce and Industry for each of the respective towns where this Policy applies (ie Macksville, Bowraville and Nambucca Heads) are to identify the preferred site for street stalls for which Council shall consider. If appropriate, those site/s shall be licensed.

 

§  As is the current practice, the Chamber of Commerce and Industry for each town will continue to issue the permits for the operation of the street stall and the like once the particular Chamber of Commerce and Industry has been granted approval in accordance with Section 68 of the Local Government Act and Section 139 and 139A of the Roads Act.

 

§  Approval granted to the particular Chamber of Commerce shall be in accordance with Section 103(1) of the Local Government Act and Section 139D(1) of the Roads Act for a maximum five year period (or lesser period if Council determines this) and this approval may be renewed after this time, in accordance with Section 107 of the Local Government Act and Section 139D(2) of the Roads Act.

 

§  One fee and one application form apply to the Local Government Act and Roads Act approval of the street vending activities. The fee for the approval is to be set out in Council’s Management Plan.

 

§  In accordance with Section 78 of the Local Government Act, land owner’s consent is required to be submitted with the application form in order to obtain an approval under the Local Government Act. In most cases, Council will be the owner of the land.

 

 

§  The Chamber of Commerce and Industry is responsible for obtaining Public Liability Insurance of not less than $10 million. Nambucca Shire Council is to be noted as an interested party on the Insurance Policy. A Certificate of Currency must be submitted to Council annually. Requirements for insurance may change on an annual basis depending on advice from Council’s Insurance Broker.

 

5.4       Controls for Commercial Operators

 

The following controls apply to the operation of commercial street vending activities (other than those operated by charities and community organisations) on the road reserve in all zones under the Nambucca Local Environmental Plan 1995 or equivalent zonings in any subsequent Local Environmental Plan.

 

§  Street vending activities are to be assessed on a merits basis and may consider other controls listed in this Policy where they provide a suitable guideline;

 

§  In addition to the merits based assessment, the Guidelines will consider the relevant aspects of ‘Guidelines for the Control and Operation of Street Vending’ (1993).

 

§  A minimum of 1800mm unimpeded pedestrian footpath is to be maintained (except River Street, Macksville where a minimum 1200mm be maintained).

 

§  The operator is responsible for ensuring that the area is maintained in a clean and tidy manner.

 

5.5       Approvals for Commercial Operators

 

§  All commercial street vending activities are required to obtain an approval in accordance with Section 68(3) Part E2 of the Local Government Act and Section 139 and 139A of the Roads Act. Council will issue the approval in accordance with Section 103(3) of the Local Government Act and Section 139D(1) of the Roads Act for a 12 month period. At the end of the 12 month period, Council is able to extend the approval in accordance with Section 107 of the Local Government Act and Section 139D(2) of the Roads Act.

 

§  In addition to the above approvals, all street vending activities are required to be licensed. The licensing of the activity will occur in conjunction with the approval of the street vending activity under the Local Government Act and the Roads Act (ie on an annual basis).

 

§  One fee and one application form apply to the Local Government Act, Roads Act approval and the licensing of the street vending activities. The fee for the approval and licensing of the street vending activity is to be set out in Council’s Revenue Policy.

 

§  The application will be required to be submitted with supporting information. This information will include a photo and a sketch of the street vending activities with details of the dimensions of the ‘vehicle’ to be used for street vending and location.

 

§  The owner is responsible for ensuring that the street vending activity has approval and has been licenced by Council and that this is renewed on an annual basis. These street vending activities are regularly inspected by Council staff to ensure compliance.

 

§  A ‘registration disc’ will be issued by Council once the Local Government Act and Roads Act approval and the licence is issued for the street vending activities. Council’s registration disc must be attached to the street vending ‘vehicle’.

 

The owner of the street vending operation is responsible for obtaining Public Liability Insurance of not less than $10 million. Nambucca Shire Council is to be noted as an interested party on the Insurance Policy. A Certificate of Currency must be submitted to Council annually. Requirements for insurance may change on an annual basis depending on advice from Council’s Insurance Broker.

 


6.0      CRAZY DAY SALES

 

6.1       Statutory Framework

 

In accordance with Section 68 of the Local Government Act 1993, Council’s approval is required for certain activities that are listed in the table under that Section. Part E2 of Section 68 states that a Local Government Approval is required to:

 

Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road.

 

A Section 68 approval under the Local Government Act is therefore required to operate a crazy day sale where it is proposed to place trading tables, clothing racks or the like within the road reserve in accordance with the guidelines outlined in this Policy.

 

Any other activity (eg street vending) that is proposed as part of the crazy day sale and is covered by this Policy, must also obtain approval as required by this Policy.

 

 

6.2       Controls

 

The following controls apply to crazy day sales where it is proposed to place trading tables, clothing racks or the like within the road reserve ancillary to an approved business in the 3(a) General Business zone under the Nambucca Local Environmental Plan 1995 or equivalent zonings in any subsequent Local Environmental Plan.

 

§   A minimum of 1800mm width of unimpeded pedestrian footpath is to be maintained, measured from the shop front (except River Street, Macksville where a minimum 1200mm be maintained);

 

§   In areas where there is parallel parking, the trading table must be located 600mm from the kerb. In areas where there is angle parking, the trading table must be located 750mm from the kerb. No signs are permitted along the front property boundary of the approved business (ie the shoreline of the building);

 

§   A maximum of two trading tables or the like are permitted for any one business with a maximum size of 1800mm x 600mm;

 

§   The trading table is to be located in front of the business that the trading table relates to;

 

§   The business operating the trading table is responsible for ensuring that the area is maintained in a clean and tidy manner. Rubbish to be regularly removed and placed in the waste bin for that business;

 

§   The table must only be placed on the public footpath during the hours of operation of the business that it relates to and only on the day of the crazy day sale. The table must be stored off the public footpath outside the hours of operation;

 

§   If street vending is proposed, then approvals are to be obtained as required by this Policy as part of the approval for the crazy day sale.

 

6.3       Approvals

 

§   The Chamber of Commerce and Industry for each of the respective towns where this Policy applies (ie Macksville, Bowraville and Nambucca Heads) are to apply for the necessary approvals for the particular crazy day sale. Where the Chamber of Commerce and Industry have selected the dates for the crazy day sales for any one calendar year, they may apply for approval for those particular days in the one application.

 

§   Approval granted to the particular Chamber of Commerce shall be in accordance with Section 103(1) of the Local Government Act for that particular day or those particular days within the calendar year.

 

§   In accordance with Section 78 of the Local Government Act, land owner’s consent is required to be submitted with the application form in order to obtain an approval under the Local Government Act. In most cases, Council will be the owner of the land.

 

§   The Chamber of Commerce and Industry are responsible for ensuring that the sales are operated in accordance with the conditions set out in the approval.

 

§   The Chamber of Commerce and Industry is responsible for obtaining Public Liability Insurance of not less than $10 million. Nambucca Shire Council is to be noted as an interested party on the Insurance Policy. A Certificate of Currency must be submitted to Council annually. Requirements for insurance may change on an annual basis depending on advice from Council’s Insurance Broker.

 

 

7         USE OF COMMUNITY LAND

 

7.1       Statutory Framework

 

7.1.1      Local Government Act

 

Where an activity or land use is proposed on ‘public land’ (as defined by the Local Government Act 1993), Council must consider the classification of the land and whether Council is able to grant a lease or licence over the land for that purpose.

 

Public land may be classified as ‘community’ or ‘operational’ under the Local Government Act 1993. The road reserve is not considered to be ‘public land’ for the purposes of the Local Government Act. Community land is generally land which should be kept for use by the general public and would normally comprise land such as a public park. Operational land is land not necessarily for use by the general public and may comprise of land held as a temporary asset or as an investment, land which facilitates the carrying out by a council of its functions or land which may not be open to the general public, such as a works depot or a council garage. Only the use of community land is addressed in this Policy, as special controls exist for its use.

 

Community Land

 

Where an activity or land use is proposed on community land, Council is restricted by the following legislative controls:

 

§   The use and management of community land is regulated by a plan of management (ie any proposed use of the community land must be consistent with the plan of management);

§   Where there is no plan of management for a particular site, the use of the site cannot change;

§   No lease or licence can be granted for a period greater than 21 years; and

§   A lease or licence for a period greater than 5 years can only be given if public notice of the lease or licence is given and, in the event that there is an objection to the lease or licence, the Minister’s consent is obtained.

 

In addition to these provisions of the Local Government Act governing the management and use of community land, Section 68 Part D requires approval for the following activities on community land:

 

§   Engage in a trade or business;

§   Direct or procure a theatrical, musical or other entertainment for the public;

§   Construct a temporary enclosure for the purpose of entertainment;

§   For fee or reward, play a musical instrument or sing;

§   Set up, operate or use a loudspeaker or sound amplifying device; and or

§   Deliver a public address or hold religious service or public meeting.

 

Other approvals may be required under the Local Government Act, depending on the nature of the proposed use.

 

7.1.2      Environmental Planning and Assessment Act

 

Whilst the Local Government Act sets out provisions for the use and management of community land, the use of the land is also determined by the provisions of the Environmental Planning and Assessment Act. In addition to considering a plan of management, the use of any land is determined by the zoning of that land and the uses that are listed as ‘permissible with or without consent’ under the Nambucca Local Environmental Plan. Where a use is permissible with consent, a Development Application will be required to be submitted.

 

 

7.2       Controls

 

The following controls apply to the use of public land classified as ‘community’ under the Local Government Act.

 

§   Where a Development Application is required to be submitted for the use of the community land, then the relevant environmental planning instruments and Council Development Control Plans will apply to the use. You will need to discuss with Council which of these will apply to your Development Application;

 

§   The proposed use must be consistent with the Plan of Management for the site;

 

§   Where the proposed use incorporates a use specified in this Policy, then the relevant provisions of this Policy will apply; and

 

§   Where there are no other controls that may apply to the proposed use, then a merits based assessment will be used and may consider other controls in this Policy that may be relevant.

 

7.3       Approvals/Lease or Licence

 

§   The proposed use will, where necessary, need to obtain Development Consent under the Environmental Planning and Assessment Act.

 

§   The use (where it is consistent with the Plan of Management) will require approval in accordance with Section 68(3) Part D of the Local Government Act where it is an activity listed under this Part. Council will issue the approval in accordance with Section 103(3) of the Local Government Act for a 12 month period. At the end of the 12 month period, Council is able to extend the approval in accordance with Section 107 of the Act.

 

§   In accordance with Section 78 of the Local Government Act, landowner’s consent is required to be submitted with the application form in order to obtain an approval under the Local Government Act. In most cases, Council will be the owner of the land.

 

§   A licence is required to be obtained from Council and all costs associated with its preparation (by Council’s Solicitor) must be met by the intended licensee.

 

§   The licence will be for a 12 month period with an option to renew the licence for a second year.

 

§   Rental for the use of Council owned/controlled land shall be at market value determined by the State Valuation Office (SVO) and reviewed by the SVO every five years. Rental increases in between those five year periods are to be in accordance with the Consumer Price Index. All costs associated with the valuation are to be borne by the applicant.

 

§   The owner/operator of the proposed use listed on the insurance policy is responsible for obtaining Public Liability Insurance of not less than $10 million. Nambucca Shire Council is to be noted as an interested party on the Insurance Policy. A Certificate of Currency must be submitted to Council annually. Requirements for insurance may change on an annual basis depending on advice from Council’s Insurance Broker.


8.0      USE OF ROADS FOR EVENTS

 

Where it is proposed to use the road for a major event, an application to temporarily close the road may be required. Council’s Operations and Technical Services Division will be able to assist in these matters. It should be noted, other approvals under this Policy may be required in this situation. Further advice should be obtained from Council’s Environment and Community Planning Division.

 


ACKNOWLEDGEMENTS

 

 

The following documents were used in the preparation of this Policy:

 

·           Environmental Planning and Assessment Act, 1979

 

·           Guidelines for the Control and Operation of Street Vending 1993 – Roads and Traffic Authority and Department of Local Government

 

·           Leasing of Roads, Footpaths, Public Areas for Restaurants and Cafes (1987) – Hastings Council

 

·           Local Government Act 1993

 

·           Nambucca Local Environmental Plan 1995

 

·           Outdoor Dining and Footway Licensing Policy Guidelines (2002) – Coffs Harbour City Council

 

·           Policy No 7 – Footpath Signage, Trading and Café Tables and Chairs (1996 and reviewed in 2001) – Nambucca Shire Council

 

·           Roads Act 1993

 

·           Street Vending Control and Outdoor Eating Areas (2000) – Armidale Dumaresq Council