Submission by Open Streets Cape Town on the City of Cape Town Draft Events Amendment By-law, 2014 1. 1.1
Introduction Open Streets Cape Town ("OSCT") welcomes this opportunity to comment on the City of Cape Town ("the City") Draft Events Amendment By-law, 2014 ("the Amendment By-law" or "the Proposed Amendments"), which contains the proposed amendments to the City of Cape Town Events Bylaw, 2009 ("the By-law").
1.2
In these submissions we firstly introduce ourselves. Thereafter we set out our general comments on the By-law and the Proposed Amendments. Our overriding theme is that the amendment process affords the opportunity to amend fairly fundamentally the By-law, an opportunity which unfortunately has not been fully grabbed by the Proposed Amendments.
Lastly, in
paragraph 4, we comment on the Proposed Amendments on a clause-byclause basis. 1.3
OSCT is willing to meet with the drafters of the Proposed Amendments in order to amplify these written submissions.
We would welcome the
opportunity to engage. We are also willing to assist in the drafting of new Proposed Amendments aimed at meeting the goals and objectives we have set out in paragraph 3 below. 2. 2.1
Open Streets Cape Town (OSCT) Open Streets is a citizen-driven initiative, working to change how streets are used, perceived and experienced. OSCT was founded in 2012 by a group of volunteers committed to a more equitable, integrated, safer and vibrant city.
2.2
The concept of Open Streets has been successfully implemented around the world and OSCT draws on decades of international and local experience in re-designing and re-working streets. It seeks to build shared places that embody respect for all and help bridge the social and spatial
2
divides of Cape Town. OSCT's campaigns have been aimed at raising citizen awareness, fostering public debate about public streets, and engaging the wider community in re-designing and re-working streets. 2.3
OSCT has been recognised as an official World Design Capital project. It has also been recognised by the South African Revenue Service as a public benefit organisation.
3. 3.1
General comments OSCT recognises the need to regulate events. Wherever the rights and obligations of the general public are affected, government (in this instance local government) has a role to play. A part of that role is regulatory, ie specifying the rules of the game and making sure that there are mechanisms in place to monitor and enforce those rules. But the flipside of the regulatory role is the facilitatory role, ie creating the environment in which events can take place and assisting those who require assistance.
3.2
Unfortunately, the By-law and the Proposed Amendments over-emphasise the regulatory function and underplay the facilitatory function. This bias runs contrary to the first and third principles set out in the Preamble to the By-law, as follows: "Whereas the City of Cape Town recognises that the hosting of events is a significant part of its competitiveness strategy and acknowledges that events have an important role in modern cities to enhance cultural and social cohesion in communities, support urban rejuvenation and economic growth; … Whereas the City of Cape Town wishes to support the co-ordination and collaboration between all role-players, to promote partnerships and to enhance the effect of events in the City. …"
3.3
These endeavours set out in the Preamble to the By-law accord fully with the Vision and Strategic Intent set out in paragraph 1 of the City of Cape Town Events Policy (October 2008 - "the Policy"). The Policy stresses Submission by OSCT to City re amendments of By-law.docx 30/10/2014
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events as a pro-active, creative and inclusive way to promote and further develop Cape Town as "•
A vibrant, multi-dimensional, event-friendly city and year-round destination which supports, celebrates and complements Cape Town' s unique identity and profile nationally and internationally.
•
A city that recognises communities and the impact of events on them.
•
A city that has the highest standard of safety and integrated management.
•
A city where the importance of events is recognised as a major economic and social development driver.
•
A city where events contribute significantly to the Gross Geographic Product (GGP) of the local economy.
•
A city where events contribute to the sense of experience and place through sport, recreation, arts and culture.
•
A city where events are developed and managed in such a way that they contribute a sustainable development, including responsible use of the natural environment.
•
A city that actively seeks or responds to opportunities for new events that support the vision for events in the city and assist in making the best use of the City's events venues and assets."
3.4
The amendment process offers the opportunity to revise the By-law so that it more fully meets the Vision and Strategic Intent set out in the Policy and recorded in the Preamble to the By-law. A regulatory regime which allows and even encourages spontaneous and organic social events ultimately assists in creating a safer, more caring and more inclusive city, while at the same time maximising the use of the city's public assets.
3.5
OSCT believes that an events by-law should promote the positive use of public space, broad public participation in deciding how that space should be utilised, the promotion of healthy living and recreation and an enabling environment for experimentation within a global context and in alignment with the strategic aims of the City. Submission by OSCT to City re amendments of By-law.docx 30/10/2014
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3.6
These goals can only be met if the City pursues principles of transparency, open communication and supportive engagement, rather than a punitive approach.
3.7
The By-law makes provision for a cumbersome and unclear process which event organisers at most levels find difficult to navigate. Only those with significant financial resources are able to comply fairly easily with the Bylaw process. This effectively limits the scope for small organisations or community groups to engage with the formal process and limits potential opportunities for the City to engage with the community.
3.8
While the Proposed Amendments go some way towards clarifying the process, they do not go far enough. In this regard OSCT welcomes some of the Proposed Amendments. For example -
3.8.1
the
Proposed
Amendment
to
section
2(2)(a)
increases
the
applicability of the By-law to events of fewer than 200 persons (currently 50 persons). This is a significant improvement; 3.8.2
the Proposed Amendment to section 4(3) implicitly allows event organisers to advertise events prior to approval of their application (admittedly and understandably at their own risk). But while these proposed changes are welcomed, they do not go nearly far enough.
3.9
One of the problems with the By-law, which is not remedied in the Amendment By-law, is its "one size fits all" approach. While section 6(a) of the By-law allows the City's Events Permit Officer ("EPO") to take "the type and size of an event" into account when considering an application, the substantive provisions relating to the approval process apply across the board regardless of the nature of the event.
3.10
We strongly urge the City to consider drawing a very clear distinction between community events and commercial events. The beginnings of this distinction have been included in the Proposed Amendments, in particular the proposed new definition of "community event" under the general definition of "event". But this definition of community event is not followed through in the balance of the Amendment By-law.
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3.11
We suggest that a distinct and far simplified process should be adopted in relation to events which meet the following five criteria:
3.11.1
the event organiser must either be a group of residents or a non-profit entity;
3.11.2
the event must be undertaken for no commercial gain;
3.11.3
the event must benefit the local community directly;
3.11.4
the event should not allow the sale or distribution of alcohol in any public places;
3.11.5
the event should promote the use of public space so as to maximise the utilisation of existing City assets.
3.12
If these criteria are met, then the City should facilitate those events in the following ways, all of which should be recorded in the By-law:
3.12.1
providing a sliding scale in respect of City services, with community events paying far less than commercial events;
3.12.2
adopting a broader approach to the assessment of the security requirements for the event, taking into consideration existing security mechanisms in the community;
3.12.3
the City should provide the safety officer for community events;
3.12.4
the EPO should facilitate the event organisers getting the necessary support from other departments within the City;
3.12.5
the event organisers should be exempt from the obligation to take out public liability insurance;
3.12.6
the EPO or officials in his/her department should be made available to explain the process and provide contact details of all involved from the outset;
3.12.7
City traffic officers should help draft a Traffic Management Plan, where this is required;
3.12.8
City assets should be made available, for example barriers, cones, advertising space, etc; Submission by OSCT to City re amendments of By-law.docx 30/10/2014
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3.12.9
there should be a direct line of communication between the event organiser and the EPO or his/her nominee;
3.12.10
at a more general level, the City should provide a step by step guide for event organisers and a document explaining the By-law in a simple and accessible way and in all three languages of the Western Cape; and
3.12.11
the City should provide a list of recommended service providers and access to documentation from previous community events so that lessons from the past can assist those organising events in the future.
3.13
If these general principles which we have outlined above are accepted by the City, it will be necessary to go back to the drawing board in order to reconceptualise the By-law and produce a new set of amendments aimed at giving effect to the principles and objectives we have outlined. We urge the City to do this.
3.14
The options which the City may consider as possible amendments to the By-laws, are as follows:
3.14.1
providing an exemption to recognised community organisations from obtaining a permit for the events organised by the organisation, ie exempting community events entirely from the provisions of the Bylaw;
3.14.2
providing a new Schedule 2A relating to the Events Requirements Listing for community organisations, in which case the existing Schedule 2 requirements will only apply to commercial events (as discussed in further detail below);
3.14.3
Giving the EPO the power to exempt community events from certain application requirements when applying for a permit;
3.14.4
Limiting the application of the By-law to events that have an attendance of more than 500 persons, as opposed to events of more than 50 persons as required by the By-law in its current form and 200 persons in its proposed amended form.
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3.15
In making these proposals, we have taken into account the following international precedents:-
3.15.1
Mountain View County, Canada: Events By-law 08/11 - a recognised community organisation is not required in terms of this by-law to obtain a license for a public event. exemption
are
agricultural
Included in this general
societies,
religious
functions,
scouts/brownies, schools and any other organisation deemed by the council to be similar in nature. 3.15.2
Auckland, Australia: Proposed Trading and Events in Public Places By-law 2014 - the organisers of fundraising events undertaken for a charitable cause are not charged any fees in respect of the their application
for
a
permit.
There
are
also
considerably
less
burdensome conditions placed on the applicant relating only to prior booking of venues and the impact on traffic flows. 3.15.3
The Township of Springwater, Canada: By-law 2009-087 - the council of Springwater exempts certain community events from obtaining a special event permit, and each event is listed in the general exemption clause provided in the by-law.
Special events are
distinguished from "Major Events", the latter being defined as "…an organised event, held for profit or otherwise, with more than 1 000 people in attendance". Specific council approval is required for Major Events. 3.15.4
The City of Strathmore (09-01), and the City of Brooks (14/03), Province of Alberta, Canada - Special Events By-laws - both by-laws provide the council or relevant events officer with the power to grant relief from any or all of the application requirements where it appears that the proposed event would serve the greater community interest.
3.16
We will submit copies of all these international precedents together with these submissions and we urge the City to take them into consideration when assessing our submission.
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4. 4.1
The Proposed Amendments In the balance of this submission we consider some of the Proposed Amendments.
We will refer to them with reference to the particular
sections in the By-law. 4.2
Section 1 - definition of "event" The proposed new definition now includes "flash mobs and events promoted through on-line event campaigns." This needs to be read with the proposed new definition of "flash mob", which is defined as "a group of people mobilised by telecommunications, social media or e-mails to assemble in a public place for a specific purpose for a brief time and then quickly dispersed." These types of events are not suited to the type of regulation contained in the By-law. Almost by definition they do not have an "event organiser" In addition, by definition they are spontaneous, thus not lending themselves to the regulatory process set out in the By-law. At the outset it is usually difficult to determine whether there will be fewer than 200 people (in which event the By-law will not apply) or more than 200 people (in which event it will apply). We propose that these types of events should be dealt with in a separate chapter of the By-law and should not be squeezed into the general provisions applying to all categories of events.
4.3
Section 1 - definition of "event organiser" The proposed new definition defines an "event organiser" as "a person appointed by the event owner to apply for and manage an event." "Event owner" is then defined as "a person funding the event." Read together, these definitions assume that every event is funded. Some events will definitely not be funded. A flash mob, for example, will not be funded, will not have an event owner and will not have an event organiser.
4.4
Section 2(3) This section allows the authorised official to issue a compliance notice where he/she finds that the By-law is, or is likely to be, contravened by an event organiser. We accept the need for compliance notices to be issued where the By-law is contravened. But it is inappropriate for an authorised Submission by OSCT to City re amendments of By-law.docx 30/10/2014
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official, potentially being a low-level employee of the City, to issue a compliance notice in circumstances where he/she subjectively believes that a By-law is likely to be contravened. It is inappropriate to give officials of the City this type of subjective delegated power. 4.5
Section 4(2) The Proposed Amendment to this section is fairly inconsequential. But the section of the By-law itself highlights our concerns regarding the "one size fits all" approach.
It cross refers to Schedule 2 which in turn lists 17
categories of information which must be provided when an application is submitted for an event permit. The Proposed Amendment extends the list to 18. The list of 18 items is arguably appropriate when commercial events are organised.
But for community events the requirements are almost
impossible to fulfil.
They include, for example, providing transport and
traffic management plans, a crowd management plan, an emergency and contingency plan, an event communication plan, a communication participation plan, an environmental management plan and an integrated waste management plan. The preparation of these plans alone would bar almost all communities from organising events. On top of this, they are required to provide indemnity forms and a public liability insurance confirmation letter.
These are further requirements which are almost
impossible for community organisations to fulfil. We strongly urge the City to reconsider Schedule 2 and to add a new Schedule 2A. Schedule 2 will then apply to commercial events. Schedule 2A will set out the requirements for community events. The list should be the minimum required for the event to proceed safely. Alternatively, the City should implement one of our other recommendations set out in paragraph 3.14 above. 4.6
The proposed new section 4(3B) and (3C) These proposed new sections require the organiser to apply to the South African Police Service for risk categorisation.
In addition the event
organiser may be required to participate in separate event safety and security planning committee meetings. Again, these new provisions add a further hurdle with which community event organisers must comply. Read together with the long list of requirements in Schedule 2, community events Submission by OSCT to City re amendments of By-law.docx 30/10/2014
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attended by over 200 people will effectively be banned. By placing so many stumbling blocks in the path of event organisers, the City is creating a disincentive for community events. This arguably infringes the right to freedom of association as set out in section 18 of the Constitution. 4.7
The proposed new section 4A We have already raised the issue of the Safety Officer, suggesting in paragraph 3.12.3 above that this should be a City appointee in the case of community events. It is totally prohibitive from a cost perspective for the event organiser of a community event to appoint and pay for a Safety Officer.
The Proposed Amendment as it stands should therefore only
apply to commercial events. 4.8
The proposed new section 5(4A) This Proposed Amendment lists the circumstances which may induce an EPO to decline an application. One such circumstance is where the event application is received "at short notice". "Short notice" is not defined. It may be implied that short notice refers to the minimum time periods for submission of an application specified in Schedule 1 to the By-law. But this is not clear from the drafting. For example, in the case of a small event, 15 working days' notice must be given. What would constitute short notice?
Would 14 days be short notice, or 10 days, or 7 days?
The
phrase needs to be defined. 4.9
Section 7(b) No amendment to this sub-section is proposed.
It deals with the
obligations on the part of the event organiser when holding an event. One of these obligations is that the event should not "negatively impact on affected communities". Again, this phrase is too vague. If, for example, an event includes music and the music can be heard by the neighbouring community, does this mean that the community is negatively or positively affected. It depends on their taste in music. This hypothetical example highlights the need to clarify the meaning and intent of this provision. 4.10
Section 8(1)
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This provision allows an authorised official (who once again can be a lowly employee of the City) to issue a compliance notice not only where the Bylaw has been contravened, but even in circumstances where "a condition has arisen that has the potential to lead to a contravention". As we stated in paragraph 4.4 above, this provision affords the authorised official far too wide and subjective a discretion to issue a compliance notice. In terms of the By-law as it stands, only the EPO or a Law Enforcement Officer could issue such a compliance notice. Now it is proposed that that power should be extended to any authorised official. It is totally inappropriate. 4.11
Section 14 In terms of this Proposed Amendment, read with the By-law, the event organiser will need to provide appropriate indemnity and, where activities may put the public at risk, public liability insurance. While these provisions may appear reasonable on a stand-alone basis, when they are added to all the other requirements to which we have referred above, they re-inforce the disincentive on community events.
Community organisations will
generally not have the funds to obtain the necessary indemnity and public liability insurance cover.
They address the situation by advising those
attending the event that they do so at their own risk, which is a viable and acceptable alternative. 4.12
The proposed new section 15(1)(c) This Proposed Amendment makes it an offence if persons attending the event or activities carried out at the event disturb the neighbouring community and the residents in contravention of section 7(b). Section 7(b), to which we referred in paragraph 4.9 above, refers to the negative impact on affected communities.
More than any other statutory provision,
provisions creating offences need to be capable of clear and unambiguous determination.
This has been stated on numerous occasions by our
courts, including the Constitutional Court.
The proposed new section
15(1)(c) completely fails the Constitutional Court's test. It is inconceivable that an event organiser could be prosecuted for disturbing the neighbouring community and residents. This provision should be deleted. 4.13
The proposed new section 15(2)
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The Proposed Amendment imposes extremely harsh potential penalties on those found guilty, with a maximum penalty of 10 years imprisonment. While harsh penalties may be appropriate in relation to infringements committed by those organising commercial events, the same penalties should not apply in relation to community events.
A different scale of
punishments would be appropriate. Consideration needs to be given to a punishment of community service for those found guilty of committing serious offences.
Imprisonment seems to be a misplaced punishment
except in the most extreme circumstances. 5.
Conclusion In conclusion, there is an invaluable opportunity to amend the existing Events Bylaw to support events aimed at effecting positive change and building social cohesion, which is in line with the Preamble to the By-law and other strategic principles of the City. This can be best done by incorporating two separate sections in the bylaw that address community events and commercial events respectively. Open Streets gathers a diverse set of interest groups and expertise that could help in galvanizing support and input to amend this bylaw. We are eager to provide support and input in this process to help enable collaboration between the City and communities 'Making progress possible. Together.'
Open Streets Cape Town 30 October 2014
Submission by OSCT to City re amendments of By-law.docx 30/10/2014
