Outdoor Dining Program

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Colac Otway Shire

Colac Otway Shire Council is encouraging hospitality businesses in the Colac Otway Shire to create or extend outdoor dining capacity under the Outdoor Dining Program.

Under the latest Stage 3 COVID-19 restrictions (8 November, 2020), the limits of people in restaurants and cafes is 70 people outdoors and up to 10 people per indoor space with a maximum of 40 people per venue indoors. The two and four square metre rules applies.

Indoor spaces must be separated by either temporary structures or at least 5 metres between collections of ten seats or less, subject to the overall indoor cap of 40, and a density of one patron per four metres squared (excludes infants of 12 months or less).  Patrons must continue to wear facemasks unless consuming food or drink and businesses must have a COVIDSafe Plan.  See the Industry Restart Guidelines for more information, Industry Restart Guidelines.

Council is committed to facilitating outdoor dining opportunities for hospitality businesses in the short term and we will co-ordinate advice to applicants about all relevant permit, or, consent applications as quickly as possible.  Through our Better Approvals process Council will make every effort to expedite permits and to make outdoor dining safe, practical and more widely available this summer. 

The State Government has introduced temporary planning permit exemptions in Clause 52.18 of the Planning Scheme that enable temporary changes to dining arrangements to facilitate the reopening and safe operation of restaurants and other food and drink businesses. In most cases this will avoid the need for planning permits to be obtained from Council.

For more information please make a Better Approvals Inquiry and we will respond to you within two business days.

What extensions to outdoor dining can be approved under the Outdoor Dining Program?

Council will consider proposals from hospitality businesses for outdoor dining options in areas not normally available, including the footpath, in car spaces and on private or public land just near where they trade.

Joint applications by neighbouring businesses for larger segments of street space will also be considered.  Proposals may also include street furniture and safety barriers that also create a nice ambience for patrons. 

Safety for staff and customers must remain the primary consideration, along with the safety of pedestrians who use the footpath in front of your premises.

Frequently asked questions

Can my business be part of the Outdoor Dining Program?

Council invites enquiries from all Colac Otway Shire based hospitality businesses that wish to offer outdoor dining.  We are keen to discuss how we may help to achieve a customised outcome that allows each business to trade safely.

Each enquiry will be assessed and treated as a bespoke and independent enquiry according to the needs of the business, the location, safety and amenity. What works in one area may not work for a different area. Whilst permits or consent may be required in some circumstances, other proposals entirely on private land may not need any permission at all under temporary State planning exemptions.

If the request is able to be approved within the Colac Otway Shire Local Laws Permit Conditions to Advertise/Display/Locate Items on the Footpath/Road Reserve, then assessment and approval can be rapid. Other, more complex, enquiries may take a little longer and will be assessed through Council’s Better Approvals program. 

If your business has not previously provided outdoor dining, complete the Application for a permit to Display/Locate Items on the Footpath/Road Reserve or Council Land.

For more information, please make a Better Approvals Inquiry and we will respond to you within two business days.

Will I need to apply for a permit, or, special permission?

If there are works on public property, please note:

  • An Asset Protection Permit may be required.
  • All costs for removal and pavement reinstatement will be borne by the person applying for the permit. Traders should take this into account when selecting a site.
  • Traders will be responsible for reimbursing Council for any reinstatement works as a result of damage to footpaths or street fixtures and furniture.

For trading on public land (including footpaths) a Local Laws permit will be required. For public land other than the road reserve adjoining the business (e.g. a coastal foreshore or public park) the consent of the managing public authority will be required. 

For the sale and consumption of alcohol beyond your current licenced area, please contact the Victorian Commission for Gambling and Liquor Regulation (VCGLR) as a Temporary Limited Licence will be required.

To establish whether your property is covered by the Bushfire Management Overlay, Erosion Management Overlay, Floodway Overlay, Land Subject to Inundation Overlay or Special Building Overlay please use the following link.

If extending onto a footpath or directly adjacent to the business please ensure:

  • Your application complies with the Permit Conditions to Advertise/Display/Locate Items on the Footpath/Road Reserve.
  • Written permission has been sought from the adjacent business owner or land manager.

For more information please make a Better Approvals Inquiry and we will respond to you within two business days.

What are the temporary exemptions to planning permit requirements?

The State Government has made a temporary exemption to remove planning requirements for businesses adjusting to COVID-19 restrictions on patron numbers and seating arrangements.

The exemption applies to construction of temporary or moveable buildings associated with the preparation or sale of food or drink on private land during the exemption period (until 8 November 2021 unless extended by the State Government) if the requirements of clause 52.18-7 are met. The exemption also applies to the temporary use of public land.

This exemption only applies to temporary buildings and works and does not apply to any permanent buildings and works which will still require a planning permit. A Building Permit may be required if any temporary buildings have a floor area exceeding 100sqm. 

If you have an existing food and drink premises (e.g. café, restaurant, hotel, function centre or winery) you could utilise your own land and the public footpath to expand your floor area to accommodate your patrons. This exemption allows for the placement of temporary and moveable buildings and/or tables and chairs on your land for the sale and consumption of food or drink provided the requirements of clause 52.18-7 are met. 

These provisions do not apply to any permanent structural changes to any building or alteration to a Heritage Building. A building constructed or placed on the land must be removed from the land before the end of the exemption period. 

Any planning permit condition relating to the layout or location of any buildings or works or car parking does not apply during the exemption period provided the requirements of clause 52.18-7 are met.  This may facilitate business owners to temporarily use other parts of existing buildings for dining of patrons, or rear garden areas including car parking spaces, without planning permission. 

Temporary exemptions (Clause 52.18-7 ) - Use and development requirements

A use or development carried out under an exemption in this clause must comply with all the requirements. The use of the land must not:

  • Continue after the exemption period unless in accordance with the requirements of the planning scheme.
  • Unreasonably affect the amenity of the neighbourhood, including through:
    • Transport of materials, goods or commodities to or from the land.
    • Appearance of any building, works or materials.
    • Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

      Other requirements that must be met include:

  • Land in, or within 30 metres of, a residential zone must not be used for the outdoor consumption of food or drink between the hours of 10.00pm and 7.00am unless an existing permit allows otherwise. Council may vary this requirement to extend the hours of the use.
  • The use or development of land must not impede access required by emergency services or for waste collection.
  • The height of a building constructed or placed under an exemption in this clause must not exceed 3.6 metres.
  • A building must not be constructed or placed under an exemption in this clause within 1 metre of adjacent land in a residential zone if the height of the building exceeds 1.8 metres. The siting of a building in a Bushfire Management Overlay or Erosion Management Overlay that would require a permit under the overlay were it not for an exemption in this clause must be to the satisfaction of Council.
  • The siting of a building in a Floodway Overlay, Land Subject to Inundation Overlay or Special Building Overlay that would require a permit under the overlay were it not for an exemption in this clause must be to the satisfaction of the Corangamite Catchment Management Authority (CCMA)
  • A building constructed or placed under an exemption in this clause must be removed from the land before the end of the exemption period.  

You are encouraged to seek advice on how you comply with these planning permit exemptions.  

For more information please make a Better Approvals Inquiry and we will respond to you within two business days.

Where can I extend my outdoor dining?

The following six options for additional outdoor dining are supported:

  1. On the footpath in front of the business submitting the application.
  2. On the footpath outside a neighbouring property subject to written permission being obtained from the neighbouring property.
  3. In on-street car-parking spaces.
  4. In parking spaces or areas of privately managed land (exempt from planning permission under temporary State planning exemptions).
  5. Repurposed internal areas of buildings occupied by a business to create additional dining capacity – also exempt from planning permission under temporary State planning exemptions.
  6. On open space or public land near to my business.
  7. Collective applications by more than one business for outdoor dining that are within a shopping strip.

Can I extend into on street car parking, what are the guidelines?

Council will consider applications to temporarily extend into on street parking on an individual basis.

Venues seeking to expand onto a road owned by Regional Roads Victoria will take a longer time to process.

Also note that businesses with loading bays in front of their premises may be considered pending consultation with surrounding traders, which could take a longer period of time to process.

For more information please make a Better Approvals Inquiry.

How many people can I seat indoors or outdoors?

  • The total capacity applied for outdoor dining cannot exceed the current approved capacity limits of your business.
  • The space is for seated service only.
  • Maximum number of patrons is the number permitted by the Covid-19 Guidelines.  The DHHS guidelines (as at 8/11/20) state the limits of people in restaurants and cafes is 70 people outdoors and up to 10 people per indoor space with a maximum of 40 people per venue indoors.  The two and four square metre rules apply.
  • Temporary structures are allowed to separate indoor spaces (should be at least 2.1 metres high) otherwise 5m distance is required between clusters of up to 10 patrons. 
  • For takeaway, members of the public are limited to the number permitted by the density quotient of one customer per four square metres.
  • Toilets and other spaces can be used as a thoroughfare to outdoor spaces (e.g. a foyer or reception area) however cannot be used when calculating the density quotient.
  • Patrons must be seated so they are 1.5m away from any patron from an adjacent group.
  • Patrons must wear face masks unless consuming food or drink.

How quickly can my application be approved?

Council will process an Application for a permit to Display/Locate Items on the Footpath/Road Reserve or Council Land as rapidly as possible.  This generally includes approvals for proposals that request an extended use of a footpath area with no service of alcohol. These can be assessed by the Local Laws team and completed within approximately one week.

A proposal that requires an extension of a red-line plan for service of alcohol may require an approval from the VCGLR.

Proposals for temporary changes to internal and outdoor dining within private land will not require a planning permit under state wide exemptions introduced, provided the conditions of the exemption are met. 

Proposals that seek more permanent changes to dining on private land will likely require a planning permit (or amendment to an existing permit), and will take more time.

Council has established Better Approvals team to collaborate on the review and approval of more complex business proposals. The cross-Council departmental team includes Economic Development, Planning, Building, Infrastructure, and Health and Local Laws staff. 

Each proposal will be assessed according to the needs of the business, the location, safety and amenity.  What works in one area may not work for a different area.

While Council will make every attempt to expedite any proposals, Council still needs to abide by specific legislation including Planning Permits that will determine the complexity of your proposal and influence how quickly the project will take.

Some aspects of your proposal may be permitted more easily than other aspects. Things to consider:

  • Extending seating areas or screens along footpaths are faster to approve than roads and public carparks.
  • The maximum capacity of the outdoor dining area can’t be greater than the existing approved capacity of the business. Don’t apply for more tables than you have now.
  • Safety issues and neighbourly support for your application will be significant considerations if you plan to extend into a carpark.
  • If you’re not planning an extension of your liquor licence red line, we may be able to make a faster assessment. Consider whether you really need to serve liquor beyond your current approved red line. Can extra tables serve as a ‘dry’ area?
  • Some requests that require a planning permission or traffic management plan will take more time. We will work through these items with you as quickly as possible.

What do I need to consider in developing my outdoor dining proposal?

Safety and Amenity

Safety and amenity is a primary consideration of any approval process for Outdoor Dining.  Council has a legal responsibility to regulate footpath trading to ensure that:

  • Public safety and disability access are not compromised
  • Pedestrians can move freely along footpaths
  • Furniture and ancillary items placed on footpaths is in keeping with the character of the street/town, and is consistent with the themes and palettes of any relevant plans, including consideration of heritage planning controls.

Right of way should be given to all pedestrians and mobility devices on footpaths.  Areas within and around outdoor dining areas should also minimise the potential for personal injury. Appropriate selection of furniture and fittings, as well as regular maintenance of items is important.

The outdoor dining space should be non-invasive and respectful of the amenity of the area. Safety features and well-designed and maintained furniture and associated infrastructure are essential. With safety in mind, street dining should aim to improve the environment, reduce the opportunity for crime and promote accessible places that encourage a feeling of safety and community participation.

Permit holders are responsible for monitoring and managing patron behaviour, and must ensure that if they operate a licensed premise (if they serve alcohol) that staff practice responsible serving of alcohol in accordance with the liquor licence.

Permit holders are responsible for maintaining the safety and cleanliness of outdoor dining areas. They are also responsible for ensuring rubbish is not windblown into neighbouring areas. Regular cleaning of the outdoor dining area by staff ensures rubbish does not accumulate. 

Footpaths & the Trading Activity Zone

Street furniture can only be displayed outside the premises to which they relate, unless there is written consent from one or more neighbouring premises for the outdoor dining to extend in front of their premises. 

As the site circumstances dictate the planning requirements, this guidance focuses mainly on requirements for extending your business onto the footpath outside your premises.

The Trading Activity Zone is that area of the footpath where signs, goods, café furniture and ancillary items may be permitted to be placed and where other permitted street activities can take place.

The Trading Activity Zone varies according to the width of the footpath and other conditions that may influence it and may not always be available for use.  An access way section is the area of the footpath adjacent to the building or property line and must provide a continuous accessible path of travel for people of all abilities.

Goods or displays will not be permitted where access to a loading zone or accessible (disabled) parking bay would be impeded.

Vehicle Access

The establishment of outdoor dining must not compromise essential or emergency vehicles access or obstruct loading, construction zones and entrances to private buildings and carparks.

Design Standard

Any additions to the streetscape should create a seamless and attractive addition to the area. The overall design of outdoor dining infrastructure should contribute to the area’s physical characteristics and enrich local life and street culture. The design and appearance of structures should be high quality and structurally sound to be able to withstand prolonged exposure to various climatic conditions.

What are the street furniture considerations?

Restaurant and café furniture and associated ancillary items will only be permitted at premises which are registered as such under the Food Act 1984 to serve food and/or beverages.

Tables and Chairs

  • Tables and chairs may only be displayed outside the premises to which they relate (unless there is written consent from a neighbouring commercial premises for the outdoor dining to extend in front of their premises), and must be contained within previously defined Trading Activity Zone.
  • An authorised officer reserves the right to prohibit chairs backing on to the pedestrian zone and the kerbside zone.
  • Items which are placed on the footpath or road surface must not be fixed and be of stable design and not able to damage the footpath.

Footpath Service 

The permit holder is responsible for the conduct of patrons at tables and chairs in the outdoor seating area and must ensure that:

  • Patrons do not move tables and chairs from the Trading Activity Zone;
  • Patrons do not allow pets, prams or any other personal items to obstruct the pedestrian zone; and
  • Food and/or beverages are not served to patrons standing on the footpath, except for take-away sales.
  • Staff serving at cafés offering kerbside trading/service are required to facilitate free access by pedestrians, including giving priority to all passing pedestrians over their own movements into and out of their respective workplaces.
  • Extension of trading beyond normal trading hours will be only be allowed on receipt of a written request to vary the permit conditions and may also be subject to a requirement to vary a planning permit for the premises.
  • Each permit holder is responsible for maintaining the outdoor seating area in a tidy manner.

    Food Preparation

    Under the Food Act the preparation of food or beverages in outdoor dining areas is not allowed.

    Barriers & Screens

    Screens may only be placed in the Trading Activity Zone where there is an approved outdoor dining facility.

    Temporary screens or screening devices must be placed where there are tables and chairs next to, or on, a road or parking space for safety reasons.

    Permit holders must gain approval during the permit application process for all structures in relation to their safety and impact on Council assets before they will be considered for approval in relation to aspects of this Footpath Trading Policy.

    Umbrellas, heaters and planter boxes

  • Permit holders must gain approval during the permit application process for all outdoor heaters, umbrellas and planter boxes.
  • Planter boxes must provide a visual amenity to the street.  It is the responsibility of the permit holder to maintain healthy plants.
  • Umbrellas in the open position must not extend outside the Trading Activity Zone.
  • Umbrellas may be secured to the footpath by a lock-in device, to the satisfaction of an authorised officer.
  • Permit holders must gain approval during the permit application process for all lock-in devices, in relation to their safety and impact on Council assets, before they will be considered for approval in relation to aspects of this Footpath Trading Policy.
  • Where a lock-in device is not used, it must be secured to the satisfaction of an authorised officer.

How much will it cost to apply?

There is no cost to businesses for a temporary outdoor dining permit application. As part of the 2020/2021 Budget Colac Otway Shire Council has waived all outdoor dining fees.  Reduction in fees for a permanent outdoor dining permit application will be considered on an individual basis.

The cost of outdoor furniture and design in the space will be the responsibility of the business owner. 

If appropriate, some of a business’s indoor furniture may be able to be used for temporary outdoor dining. Businesses may also choose to hire furniture or other items like umbrellas or heaters.

Businesses should also consider waste management and cleaning when planning their outdoor space.

The Victorian Government has launched a grant program to support businesses that require additional equipment.  

Can I extend my operating hours for outdoor dining?

Changes to these conditions may require a planning permit amendment and is not covered under this program.

Where can I apply for a $5000 grant to pay for furniture and other equipment?

The Outdoor Dining Program has been developed in response to State Government ‘Outdoor Eating and Entertainment Package' announced on 14 September. The package which aims to help businesses prepare for COVID Normal by creating safe outdoor dining spaces. 

Eligible businesses can apply for a grant of $5,000 to pay for the practical things like umbrellas, outdoor furniture, screens and other equipment. 

The grants will be available to licensed and unlicensed cafés, restaurants, takeaway food businesses, pubs, taverns, bars and clubs with a payroll of less than $3 million. 

A list of all current Business Support Grants are available on www.business.vic.gov.au.

Will I need to extend my liquor licence if I extend/start outdoor dining?

Any premise that proposes to serve alcohol on the footpath must have ensure its liquor licence from VCGLR includes this area as part of the ‘licensed area’ prior to consideration of any application. Written permission is required first from Council for a temporary footpath trading extension before VCGLR will temporarily extend your red-line area for service of alcohol.

If you already have a liquor licence for your outdoor area and you are not proposing an extension to that area, then you won’t need to amend your liquor licence and can operate as normal.

If you extend your outdoor dining area on private property and would like to serve alcohol in this area, you may need a temporary change to the Liquor Licence with the Victorian Commission for Gambling and Liquor Regulation (VCGLR).

The VCGLR has a streamlined approach to help existing licensees temporarily use outdoor areas for dining.  Please visit https://www.vcglr.vic.gov.au/covid-19 for more information. 

Will I need public liability insurance?

Council’s “application for a permit to display/locate items on the footpath/ road reserve or Council’s land” provides $20m public liability cover for permit holders.

This applies to the placement of advertising boards and other merchandise on footpaths or areas deemed to be Council property under a permit issued by Council, including but not limited to street cafes’, trading tables, waste management bins and the like.

This public liability cover does not apply to those wishing to extend their dining onto private property.

Can I extend my outdoor dining onto foreshore land?

Much of the foreshore in Colac Otway Shire is managed by Great Ocean Road Coast Committee (GORCC) and will need land manager approval from them. Other public land is managed by Council or other public agencies.

Applications to utilise publicly managed areas will require approval from the current land manager.

Safety, environmental, public access and maintenance issues will need to be addressed in the application.

Do I need a CovidSafe Plan and have to record patron names and contact numbers?

Yes, you must have a COVID-Safe Plan and record all patron names and contact numbers. You must also view the ID of all patrons.

It is essential that you abide by all Victorian Government restrictions and keep up to date with changes as they are announced.

Please refer to the Victorian Government coronavirus website advice on third step restrictions for cafes and restaurants or more information.

What if my neighbour makes a complaint about noise or other matters?

Talk to your neighbour about your ideas before you come to Council.

Council is keen to work with businesses to achieve an agreeable outcome. It is hoped neighbouring businesses will support each other in good faith during this time and our staff will be able to help negotiate this if needed.

If complaints are persistent or numerous, Council is required to investigate.

How long will the outdoor dining program run?

The program has a focus on temporarily assisting hospitality businesses as part of COVID-19 recovery.

At this stage there is no defined period by the State Government as to the program's duration, however Council has nominated 30 June 2021 as the program review date.  State Government temporary planning permit exemptions will apply until 8 November 2021 unless further extended through changes to the Victorian State of Disaster declaration.

Council reserves the right to review and amend this date if the need arises or if the State of Emergency related to COVID-19 is extended or rescinded.

How can my business be part of the outdoor dining program if I don’t already offer outdoor dining?

If your business does not have a current outdoor dining permit, please complete a new Footpath Trading Application: 

Application for a permit to Display / Locate Items on the Footpath/ Road Reserve or Council Land

Laws Permit Conditions to Advertise/Display/Locate Items on the Footpath/Road Reserve

 

Related information – website links

Contact Information

For more information please make a Better Approvals Inquiry and we will respond to you within two business days.