3.1 Specific definitions
These definitions apply specifically to this part of the Bylaw, in addition to the general definitions in Part 1: General Provisions:
Busker - A person who entertains by way of speech, song, music, theatrical or juggling acts in any public place. The activity of "busking" has a corresponding meaning.
Charitable cause - A non profit organisation that raises funds for the benefit of a community group or for the overall benefit of the public.
Food - The same meaning as in the Food Act 1981 or any subsequent Act or amendment to this Act.
Flea market - A place where private, commercial or charitable street traders may gather together to offer sales using a site temporarily (includes craft and theme markets).
Hawker - A person who carries or takes about on themselves or in any vehicle any goods, wares or merchandise for sale, but not by invitation, or previous order or request for those goods. It includes anyone who exposes for sale any goods, wares, or merchandise carried or taken about by them on their person or solicits the custom of any other person. It does not include a person operating a mobile shop or stall or a busker.
Mobile shop - A vehicle from which goods, wares, merchandise or services are offered or exposed for sale or hire while using a public place, but does not include any vehicle on or from which food is sold for consumption in the vehicle, or any vehicle used to transport and deliver goods, wares, or merchandise pursuant to a prior order. A mobile shop does not include a mobile library.
Outdoor cafe - An establishment providing food or drink which has an outdoor seating area in a public place and which is under the control of the person named on any licences issued under the relevant food and hygiene regulations or under the sale of liquor Act.
Public place - Public place means a public place as defined in Part 1: General Provisions, which is owned by or is under the control of the Council.
Shop - Any land, building or part of a building in which goods are sold, disposed of, or offered for retail sale including a factory shop but excluding a warehouse, showroom, factory, vehicle sale yard or showrooms, flea market, liquor licensed premises, amusement gallery, restaurant, or service station.
Furniture - All furniture associated with outdoor cafes, including but not limited to, tables, chairs, umbrellas, trestles, bollards, planters, ropes, menu stands, gas heaters, safety rails, overhead canopies, windshields, hoardings and other product banners. Outdoor furniture in this context does not include bar leaners.
Stall - A stall, tent, vehicle, barrow, awning, table, trestle, newspaper box or display stand, temporary structure or place on, at or from which goods, wares, merchandise or services may be purchased or ordered, but does not include a mobile shop or fishing vessel which holds a valid fishing permit.
Trade goods - All signs, sandwich boards, stalls, vehicles and other equipment associated with trading.
Trader - A person who undertakes trading.
Trading - Means:
(a) operating a stall, mobile shop or flea market;
(b) displaying, selling, hiring or offering goods or services, whether as a hawker or otherwise:
(c) busking;
(d) fundraising for a private or charitable cause
Unobstructed footpath - The area of public footpath that is completely clear of other obstructions such as parking meters, signs, power poles, trees, tables, chairs, clothing racks, trestles, planters and any other fixtures, products or items that could obstruct the public right of passage.
Water-borne craft - A boat or other vessel, including sailing boats, catamarans, windsurfers, jet skis, wave runners, surf skis, canoes, kayaks, water bikes and floatation devices used for conveying people by water.
3.2 Permits for trading in public places
3.2.1 You may use a public place for trading if you obtain a permit and meet the conditions of this bylaw.
3.3 Applying for a permit
3.3.1 If you wish to apply for a permit under clause 3.2.1 for trading in a public place you are required to make application on the form provided by us. Subject to clause 3.6.2 in the case of an outdoor café your application shall include:
(a) A plan showing the location of the area of public space you wish to occupy.
(b) Letters of consent to the proposed activity signed by the people who occupy the properties directly next to where you want to trade (not applicable for applications for mobile shops); if required by us;
(c) A statement of the classes of goods, which you wish to trade in, or the service you wish to provide.
3.4 Mobile shops – special rules
3.4.1 You must not conduct business on or from a mobile shop in any public place:
(a) For more than 30 minutes without moving at least 100 metres to the next trading location (and not returning to the previous location for a minimum period of one hour), unless you have approval from us to set up in one specific location.
(b) In breach of any limits on stopping, standing or parking on a road.
3.4.2 You may only use musical chimes on a mobile shop while the shop is moving, and not within the vicinity of any hospital, church or place of worship where a service is being conducted, and the chimes must not cause a nuisance or be annoying to residents nearby.
3.4.3 You are required to operate the mobile shop in a safe manner, which is not likely to cause a hazard to pedestrians or other traffic.
3.5 Street traders/window washers
3.5.1 Unless you have a permit from us you must not solicit any subscription, collection or donation on any roadway or use the roadway for the purposes of selling or offering goods or services of any kind.
The washing of vehicle windows for a fee or donation is not permitted on public roads or from public places.
3.6 Outdoor cafes in public places
3.6.1 If you have a permit from us, you may occupy a public place for an outdoor cafe on the approved section of public area.
Outdoor Café Permit Application
3.6.2 If you wish to apply for a permit under clause 3.2.1, you are required to make application on the form provided by us. Your application should include:
(a) A scale plan delineating the extent of the public area to be occupied and the siting and the number of units of furniture proposed.
(b) Photograph of the site.
(c) Specifications and a photograph of the proposed furniture.
(d) Specifications of any enclosures or awnings including ground and supporting fixtures. This includes any semi-continuous or continuous overhead, side and front enclosures (including those that are retractable) that are supported by any fixed supports, structural frames or columns in the public place, whether or not the enclosure is occupied by café furniture.
(e) Details of public liability insurance.
Outdoor Cafes – Special Rules
3.6.3
(a) When occupying the public place for the purpose of outdoor cafes a minimum unobstructed footpath width of 1.8 metres is required to be kept clear for safe passage and pedestrian access at all times where the footpath width is 4.0 metres or more. A minimum unobstructed footpath width of 1.5 metres is required for pedestrian access where the footpath width is less than 4.0 metres.
(b) When assessing a permit application we shall take into account the need to maintain direct pedestrian lines and any outdoor dining/activity permitted on neighbouring or adjacent sites.
(c) Furniture may be located along the kerbside provided it is at least 400mm from the kerb edge and the required unobstructed footpath clearance as specified in (a) is available for pedestrians.
(d) Furniture is required to be of a quality standard and for the principal purpose of seating.
(e) No furniture may be placed on a footpath that is not reasonably level over its entire width, or in any other way that we consider creates a safety hazard.
(f) All furniture must be sited within the side boundaries of the business frontage and fully contained within the licensee's delineated area. The delineated area may be clearly defined by markers or other methods as approved by us.
(g) No furniture shall occupy the public place outside the hours specified in any approved permit.
(h) All furniture is to be removed from the public place at the end of each days trading, unless otherwise specified in the permit.
(i) The permit allows premises holding a liquor licence to provide seating for customers within the defined public area. The licencee is required to apply to have the approved seating area included in their liquor licence.
3.6.4 Unless you have approval or a special endorsement in your permit allowing you to do so you must not:
(a) Use any amplified form of musical entertainment in the public place.
(b) Place any semi continuous or continuous overhead, side and front enclosures (including those that are retractable) that are supported by any fixed supports, structural frames, columns or ground fixtures in the public place.
3.7 Sale of food
(including sale of food from commercial stalls, flea markets and by hawking)
3.7.1 If a person applying for a permit under this Bylaw intends to offer for sale food for human consumption, the application shall be accompanied by licences which the applicant may be required to obtain under any Act, regulation or bylaw relating to the sale of food and the licensing and regulation of the trade or business.
3.7.2
(a) You must not sell food from a commercial stall or flea market unless the food sold has been manufactured, prepared and wrapped in a premises or mobile shop registered for food handling and preparation in accordance with any Act, regulations or bylaws in relation to hygiene and food preparation.
(b) If you sell garden or orchard produce, or food is sold from a licensed mobile shop, you do not have to comply with the requirements of clause (a).
3.8 Hiring waterborne craft from a public place
If you wish to apply for a permit under clause 3.2.1 to hire out waterborne craft from a public area your application should include documentation to:
(a) Demonstrate that you are the holder of a current marine safety certificate from the Auckland Regional Council Marine Navigation section or an equivalent certificate from the Maritime Safety Authority or any other authority which at that time is legally able to grant such a certificate; or In the case of a limited liability company, you have a person on site at all times who holds such a certificate.
(b) Identify details of public liability insurance.
3.9 Deciding your application
3.9.1 On receiving any application for a permit under this part of the bylaw, we may:
(a) Decline your application if we consider that appropriate standards of convenience, safety, access or visual amenity would not be met; or
(b) Grant your application and:
- Determine the period during which the permit remains valid, and
- Impose any reasonable conditions on the permit which we consider are appropriate in the interests of pedestrian access and public safety; or
(c) Grant the application in part and set a review period.
3.10 Permit fees
3.10.1 When you apply for any permit under this part of the Bylaw you are required to pay the prescribed fee set by Council.
3.11 Displaying or producing your permit
3.11.1 If you hold any permit under this part of the Bylaw you are required to:
(a) Display a copy of it prominently for the view of members of the public or council officers.
3.12 When we may review suspend or cancel a permit
3.12.1 We may review suspend or revoke any permit issued under this part of the Bylaw, in which case we may refund you a proportion of the permit fee:
(a) Without notice if urgent action is required to protect the public from unhygienic, unsafe or hazardous conditions;
(b) On 48 hours notice to you, on the grounds that the activity will interfere with intended road works, a special event or with the public's normal right of passage;
(c) The General Manager Transport Services or a nominated officer may suspend any permit without notice, where urgent works are required in the public area where the permit applies.
(d) Where there are repeated breaches of permit conditions.
3.13 Special waivers and fee exemptions
3.13.1 You may apply to us to use any public place for a charitable event, community market day or gala type occasion. We may give permission for that activity at our discretion without the necessity of you having to obtain a permit.
3.13.2 If you own a fishing boat registered under Section 103 of the Fisheries Act 1996 then you or a person appointed by you may sell fresh fish or shell fish caught from that boat or within the immediate vicinity of where it is moored, berthed or beached. Any fresh fish or shellfish taken from that boat to be sold must be caught in accordance with the conditions of the fishing permit.
3.13.3 We may at our discretion waive the requirement to obtain a permit for the following activities:
(a) Using a public place for the sale of raffle tickets for charitable causes;
(b) Busking in a public place;
(c) Carrying out promotional marketing in a public place, whether it is attended by other people or not; or
(d) Setting up a stall (which may include the sale of food) in any one location in a public place, which is operated entirely for a charitable cause.
3.13.4 You may only rely on a waiver under clauses 3.13.1, 3.13.2 or 3.13.3 if you comply at all times with any conditions of the waiver.
3.14 Enforcement
3.14.1 If you are occupying any public place for the purposes of operating an outdoor cafe, trading or busking:
(a) You are required to comply with any conditions on the permit. An officer can suspend or revoke your permit if you are in breach of the permit conditions.
(b) You are required to comply with any lawful instruction, which an officer gives you, whether you hold a permit, or not.
(c) If you do not hold a permit from us, you must, if instructed to do so by an officer, discontinue the activity and remove any furniture and trade goods from the public place immediately.
(d) If any busking is considered to be disturbing or annoying to people in the area you must stop busking when instructed by an officer.
3.14.2 If you do not comply with any lawful instruction given to you -
(a) The officer may remove and impound any furniture, trade goods or instruments, from the public place, and
(b) We may keep any furniture, trade goods or instruments in safe custody on our premises, and may release them to you if you pay the costs of removing, transporting and storing them, and any costs of releasing them to you.
3.15 Appeals / reviews procedure
3.15.1 Any person who has a permit application declined or revoked by an officer may apply to us in writing for a review of the decision and we may review it accordingly.
GENERAL GUIDELINES RELATED TO PERMIT APPLICATION
FORMS AND CONDITIONS:
The following information is an outline of suggested conditions of permit approval, conditions of any permit granted and an example of an information checklist to accompany an application form. These conditions and checklists are based upon the conditions currently in operation in the Devonport system and are also based on best practice examples for other Councils. Please also note that the conditions are primarily aimed at permits for outdoor cafes and for general trading. They are to be read as suggested conditions only. Further specific standard conditions may be required to be developed for the permitting of hawkers, mobile shops, buskers, stalls in addition to those that are listed in the bylaw itself.
Suggested information checklist to accompany applications for outdoor cafes/general trading
- Completed application form
- A scale plan delineating the extent of the public area to be occupied/enclosed and the siting and number of units of furniture proposed.
- Photograph of the site (e.g. shop frontage).
- Specifications of proposed furniture e.g. planter boxes, tables, chairs, umbrellas, trestles, gas heaters, cigarette receptacles other materials etc (photographs may be submitted) N.B: no braziers or any open fires are permitted.
- Any other documents that may be required by the manager or authorised officer.
- Copy of current public liability insurance policy to a value of a minimum of 1 million dollars.
Special endorsements
- Specifications of any wind curtains, canopies, awnings and their attachments/fixing devices. NB: No attachment devices may protrude above the surface of the footpath. Any wind curtains, awnings etc are subject to a special endorsement in the permit.
Permit approval conditions
- The permit holder is required to delineate the extent of their permitted area and may be required to provide for footpath markers.
- Any furniture is to be kept within the projected side boundaries of the applicants business. Any application for the siting of furniture on the roadside edge of the footpath will be at Councils Discretion. In any event there must be a clear, level, unobstructed footpath width of 1.8 metres or 1.5 metres as applicable. NB: Clear footpath means completely clear of any obstacles – including streetlights, refuse bins, parking meters and the like.
- The design and materials of any furniture shall be appropriate to, and not detract from, the visual amenity of the streetscape.
- Where liquor is to be consumed in the public area applied for, an application will be required to made to be made to the Liquor Licensing Authority for redefinition of the premises sale of liquor licence to include the subject public area. Any permit to trade in a public place would be conditional to ensuring that there is no inconvenience or obstruction to the public and the area to be occupied is continuously maintained to a clean, tidy and safe standard.
Permit suspension or revocation
- Any permit may be suspended or revoked where, as a consequence of non-compliance with the conditions of permit or the “ Trading in Public Places” Bylaw, it has been necessary to do so to protect the public from unhygienic, unsafe or hazardous conditions.
- Suspension, revocation or refusal to issue or renew any permit may occur where the holder or applicant has been convicted of an offence under the Bylaw.
Public liability and damage to footpaths
- The permit holder will not cause any unreasonable obstruction to the public and, if this is done and damage or harm occurs, the permit holder will be liable and will indemnify the Council for any claim against the Council.
- The permit holder will be liable for all costs of repair to any damage or cleaning required to the footpaths, which arises from the use of the permitted area. A damage deposit bond may be required in cases of previous problems at the time of renewal of the permit.
Suggested conditions of permits for outdoor cafes/general trading
Subject to the following conditions:
- The permit holder shall keep the area around the trading operation in a neat and tidy condition, free from litter and provide adequate and suitable litter/cigarette receptacles for the use of patrons.
- The permit holder shall not sell or offer for sale any commodity or service not specified above.
- The permit holder shall not cause any unreasonable obstruction to the public and if this occurs and damage eventuates the permit holder shall be liable and will indemnify the Council for any claim against the Council.
- This permit is granted subject to compliance with all relevant legislation, policies and guidelines.
- Council reserves the right to suspend review or revoke any permit in the event of non-compliance with any of the permit conditions or relevant regulations and Council bylaws.
Outdoor cafe and trading permit special conditions
- Hours of operation – furniture associated with this permit for the operation of an outdoor café may occupy the delineated area within the public place between the following hours: XX Days XX am – XX pm (signed by operator and council officer).
- Each permit holder is responsible for maintaining the permitted area to a clean, continuously tidy and safe standard.
- The design and materials of the furniture shall be appropriate to, and not detract from, the visual amenity of the area.
- All street furniture (including canopies, awnings and curtains etc) to be removed/taken in at the end of each day’s trading. Street umbrellas shall be adequately secured and of sufficient height so as not to present a safety hazard or obstruct footpath users.
- A minimum unobstructed, level footpath width of 1.8 metres must be kept clear for pedestrian access at all times where the footpath is 4.0 metres or wider.
- A minimum unobstructed, level footpath width of 1.5 metres must be kept clear for pedestrian access at all times where the footpath is less than 4.0 metres in width.
- Where an overhead verandah is in present at least 1.2 metres of the unobstructed footpath clearance shall be under the cover of the verandah, unless determined to be impracticable by us.
- When assessing a permit application we shall take into consideration the need to maintain direct pedestrian lines and any outdoor dining/activity permitted on neighbouring or adjacent sites.
- No additional street furniture to be placed on public property without the consent of Council.
- Permit holders are not to use sandwich boards or signs in the public place where the street furniture is to be sited, unless specifically included in the permit.
- All street furniture to be sited within the side boundaries of the shop front and contained fully within the delineated area.
- Front and side awnings that have been given permit approval are required to be transparent to allow for clear visibility.
- Abide by the directions of authorised North Shore City Council officers.
- Liquor Licence – This permit does not allow consumption of alcohol outside your defined licensed premises unless authorised by your liquor licence. Refer Regulation 7: Sale of Liquor Regulations 1990, and contact Council’s Liquor Licensing Officer for more advice. The above permit will not be operative until any extension of the defined area is approved by the Liquor Licensing Authority.
- The outdoor seating area that is approved for any café or licensed premise is specifically for the purpose of providing seating for customers.
- Permit holders may be required to provide appropriate cigarette receptacles within the designated area.
- Permit holders are responsible for all public liability arising from the placement of street furniture on the footpath.
- Council reserves the right to suspend or revoke any permit in the event of non-compliance with any of the permit conditions or the NSCC “ Trading in Public Places” Bylaw.