Posted on November 1, 2021 by James King and Megan Hawley 6

The New NSW Alfresco Dining Regime

As we all look forward to returning to our local restaurants, pubs and cafes the NSW Government has released their ‘Alfresco Restart Package’. Included in the Alfresco Restart Package are changes to the planning rules to enable premises across the state to implement outdoor dining as exempt development.  The changes to planning rules in relation to outdoor dining on footpaths and public open space are permanent. The other changes outlined below are temporary and are to be repealed on 18 April 2022.

This Package follows a successful outdoor dining trial launched in October 2020 in the Rocks and Darling Harbour which was later extended state wide. The trial was deemed a success for both businesses and the community – in Darling Harbour businesses reported a 27% increase in customers during the City of Sydney trial.

In this article we will discuss the main features of the changes to the planning rules as well as consider some of the potential impacts of the changes.

The New Outdoor Dining SEPPs

The State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Outdoor Dining) 2021 (link) and the State Environmental Planning Policy (Exempt and Complying Development Codes) Further Amendment (Outdoor Dining) 2021 (link) (‘the Outdoor Dining SEPPs’) both commenced on 8 October 2021. The Outdoor Dining SEPPs amended the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (‘the Codes SEPP’).

The key changes introduced by the Outdoor Dining SEPPs are that the following uses are now exempt development:

• The use of a footway or public open space (within the meaning of the Roads Act 1993) as an outdoor dining area, if the use is associated with lawful food and drink premises;
• The use of private land as an outdoor dining area, if the use is associated with lawful food and drink premises;
• The use of public land as an outdoor dining area; and
• The use of the premises of a registered club as an outdoor dining area associated with lawful food and drink premises, if the premises are located on community land within the meaning of the Local Government Act 1993 or private land.

Exempt development means that the carrying out of the development does not require development consent under Part 4 of the Environmental Planning and Assessment Act 1979.

For use of general private/public land and registered club premises as outdoor dining to be exempt development, the development must not be carried out on land in an environmental zone or in a place of Aboriginal heritage significance identified in a local environmental plan.

The Development Standards for Outdoor Dining

There are development standards under the Outdoor Dining SEPPs which need to be met in order for outdoor dining to be exempt development.

The development standards for use of a footpath or public open space for outdoor dining are that approvals under s125 of the Roads Act 1993 and s68 of the Local Government Act 1993 must be granted and the use must be carried out in accordance with those approvals.

The development standards which must be met for the use of general private/public land for outdoor dining are:

• must be located at ground level (existing);
• must not cause offensive noise, within the meaning of the Protection of the Environment (Operations) Act 1997 (‘POEO Act’), or other nuisance that affects adjoining owners;
• must not restrict any vehicular or pedestrian access to or from, or entry to a building on, the land on which the development is located;
• for development associated with lawful food and drink premises—must not contravene an existing condition of the most recent development consent, other than a complying development certificate, that applies to the existing food and drink premises relating to hours of operation, maximum capacity of patrons, waste management, food safety and pollution control; and
• at the end of the use the land must, as far as practicable, be restored to the condition in which it was before the commencement of the use.

Registered clubs have their own similar development standards under the Codes SEPP for outdoor dining as follows:

• must not cause offensive noise, within the meaning of the POEO Act, or other nuisance that affects adjoining owners;
• must not be carried out on more than 50% of the outdoor area of the registered club;
• if carried out on land otherwise used for the purposes of a car park—must be designed to ensure pedestrian and patron safety;
• must not reduce the existing access to the registered club for people with a disability
• must not contravene an existing condition of the most recent development consent, other than a complying development certificate, that applies to the registered club or the food and drink premises, other than in relation to car parking space; and
• at the end of the use the land must, as far as practicable, be restored to the condition in which it was before the commencement of the use.

What about Liquor Licensing?

Along with the changes to the Codes SEPP, the  Liquor Regulation 2018 has also been amended. Under the Liquor Act 2007 all licenses whether for a bar, hotel, club or on-premise (e.g. a restaurant or entertainment venue) require that alcohol only be consumed and sold within the boundaries of the licensed premises.

The Liquor Amendment (Outdoor Dining) Regulation 2021 (link) has removed the requirements under the Liquor Act 2007 that the Independent Liquor and Gaming Authority take into account submissions or charge a fee before altering the boundary of a licensed premises to incorporate an approved footway, community land, road, open space or outdoor dining land. These changes only apply to premises with the required approvals under the Roads Act 1993 and Local Government Act 1993 for footpaths and to outdoor dining areas on private or public land that are classified exempt development.

Further, the applications may only be for sale of alcohol between 10:00am and midnight and must not seek to increase the patron capacity of the licensed premises.

Offensive Noise and Nuisance

Two issues which we consider may arise under the new planning rules are offensive noise and nuisance complaints. As described above, one of the development standards for use of general private/public land for outdoor dining is that the development must not cause offensive noise within the meaning of the POEO Act or other nuisance which affects adjoining owners.

Offensive noise is defined in the POEO Act as noise that by reason of its level, nature, character or quality, or the time at which it is made or any other circumstances:
– is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted; or
– interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted.

The current Noise Guide for Local Government is available here. As we discussed in this article the EPA is currently undertaking a review of the current Noise Guide and has published an updated Draft Noise Guide for Local Government. If the offensive noise development standard for outdoor dining is not met, relevant authorities should consider the Noise Guide and assess whether they should take enforcement action.

Nuisance is an unlawful interference with a person’s use or enjoyment of land or of other some right in connection with land. Generally, the term nuisance signifies a state of affairs which is continuous or recurrent. Noise is an example of something that can be a nuisance, but a nuisance can also be caused by offensive odours, air pollution and damage caused by overflow of water. If an outdoor dining development results in nuisance which affects the adjoining owners, relevant authorities should consider enforcement action.

The classification of the use of general private or public land and the premises of registered clubs for outdoor dining as exempt development is set to be repealed at the end of 18 April 2022. Whether it is extended beyond that period is likely dependent on the success of the scheme.

If you wish to discuss the above please contact Megan Hawley on 8235 9703 or James King on 8235 9722.