1. Application and acceptance of Terms and Conditions
1.1 The Crown in right of NSW (acting through its various emanations including Service NSW and Revenue NSW) is delivering the Alfresco Restart Rebate (Scheme). A one-off rebate of up to $5,000 is available to the first 5,000 approved eligible Small or Medium Food and Beverage Businesses for expenses incurred in creating, expanding or improving their alfresco areas to enable increased capacity. Approved businesses can claim the rebate against eligible expenses incurred and paid from 14 October 2021 until 11:59pm, 30 September 2022.
1.2 Rebate payments made under the Scheme will be made as act of grace payments by the Minister for Customer Service and Digital Government (or his delegate) under section 5.7(1) of the Government Sector Finance Act 2018 ('GSF Act'). The conditions in clause 4 are conditions that will be imposed by the Minister for Customer Service and Digital Government or his delegate on the making of the payment under section 5.7(2) of the GSF Act. If any of the conditions in clause 4 are contravened, the payment is repayable on demand and may be recovered from the recipient by the Crown, including in a court of competent jurisdiction, as a debt due to the Crown pursuant to section 5.7(3) of the GSF Act.
1.3 By applying to register for the Scheme, applicants agree with the Crown to be bound by these Terms and Conditions.
1.4 Additional information about the type of documentation and evidence required to apply for payments under the Scheme is available on the Service NSW website.
2. Definitions and interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires:
Aggregated Annual Turnover means aggregated turnover as defined in s. 328.115 of the Income Tax Assessment Act 1997 (Cth). Aggregated turnover includes the annual turnovers of entities (including foreign entities) that are connected with or affiliates of the business entity. The Australian Taxation Office has further information on calculating aggregated turnover.
For charities registered with the Australian Charities and Not-for-profits Commission (“registered charities”), when calculating aggregated annual turnover, gifts and Government grants should be included. For not-for-profit organisations that are not registered charities, gifts should be excluded, and Government grants included when calculating aggregated annual turnover. For more information, please visit the ATO website.
Applicant means a business applying for registration under the Scheme.
Authorised Representative means a person authorised by a business to register the business for the rebate and/or apply for a payment under the Scheme.
Eligible Expenses means the expenses described in clause 3.8 of these Terms and Conditions.
NSW Government means the Crown in right of NSW acting through any of its agents or emanations (including Service NSW and Revenue NSW).
Small or Medium Food and Beverage Business means a business that meets the criteria in clause 3.2.
Successful Customer means an Applicant that has successfully registered in the Scheme and received notification from Service NSW that they may apply to claim a rebate.
Terms and Conditions means these Terms and Conditions for participation in the Scheme.
2.2 Unless the context requires otherwise, the singular includes the plural and vice versa, reference to a gender includes all genders, reference to 'person' includes a natural person, company, body corporate or other form of legal entity, and reference to 'including' and 'includes' and 'for example' is to read as if followed by 'without limitation'.
2.3 If a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning.
3. Application to receive a payment under the Scheme
3.1 An Applicant may apply online to register for the Scheme. At the time of applying for registration, an Applicant must declare that they meet the eligibility criteria in clause 3.2. An application for registration may be lodged by an owner of the business or an Authorised Representative.
3.2 To be eligible to register for and receive payment under the Scheme, an Applicant must be a business that:
a. is creating, expanding or improving or has created, expanded or improved permanent or temporary alfresco dining areas (such as on footpaths and public spaces), from 14 October 2021 to 30 September 2022;
b. has incurred or will incur Eligible Expenses in relation to creating, expanding or improving its permanent or temporary alfresco dining areas between 14 October 2021 and 30 September 2022;
c. is classified under at least one of the following ANZSIC (Australian and New Zealand Standard Industrial Classification) codes:
- i. Code 4511 Cafes and Restaurants;
- ii. Code 4520 Pubs, Taverns and Bars;
- iii. Code 4530 Clubs (Hospitality);
- iv. Code 4400 Accommodation, however limited only to businesses engaging primarily in hotel operation and motel operation. For the avoidance of doubt, code 4400 does not include, for the purposes of these Terms and Conditions, businesses operating camping grounds, caravan parks, holiday houses and flats, resorts, serviced apartments, ski-lodges, student residence and youth hostels;
- v. Code 1212 Beer Manufacturing;
- vi. Code 1213 Spirit Manufacturing;
- vii. Code 1214 Wine and other Alcoholic Beverage Manufacturing;
- viii. Code 0131 Grape Growing;
d. has a current and active Australian Business Number (ABN), which was registered before 1 June 2021. For the avoidance of doubt, this does not include an ABN that was registered after 1 June 2021 where the start date has been altered retrospectively in the Australian Business Register to predate 1 June 2021;
e. has its operating premises physically located on land in NSW;
f. has an Aggregated Annual Turnover of $10 million or less for the year ended 30 June 2021;
g. has obtained any required approval to both use the land for alfresco dining and to create, expand or improve the alfresco dining area, from a council, Place Management NSW or other authority at the time of claiming the rebate; and
h. if required under any applicable lease, has the consent of the lessor to use the land.
3.3 Applications for registration will be limited to 1 application per ABN. Any rebate subsequently received may be used in relation to expenses incurred at multiple business locations operated under the same ABN if the eligibility criteria are met in respect of each of those locations.
3.4 Successful Customers will be notified by email by Service NSW or Revenue NSW whether their application for registration in the Scheme has been accepted.
3.5 A Successful Customer may apply for a one-off rebate of up to $5,000 for expenses incurred and paid from 14 October 2021 to 30 September 2022 in creating, expanding or improving its permanent or temporary alfresco dining areas. The application for payment must be made on or before 30 September 2022 by:
a. the Successful Customer, which is the business that incurred the Eligible Expenses and is seeking payment; or
b. an Authorised Representative of the Successful Customer on behalf of the Successful Customer
via their MyServiceNSW Account.
3.6 Successful Customers are required to, when making a claim for payment of a rebate:
a. confirm that they continue to meet the eligibility criteria for registration in clause 3.2;
b. submit the following evidence that their business had an Aggregated Annual Turnover of $10 million or less for the financial year ending 30 June 2021:
- i. an Australian Income Tax Return for the financial year ending 30 June 2021. However, businesses are not required to provide tax file numbers, and these should be removed or obscured from any income tax return provided to the NSW Government;
- ii. an audited profit and loss statement for the financial year ending 30 June 2021; or
- iii. a letter from an accountant, registered tax agent or registered BAS agent that confirms their business income for the financial year ending 30 June 2021;
c. submit the following evidence that their business was operating in New South Wales at the time of registration, and where the Eligible Expenses relate to multiple business locations in New South Wales, for each business location:
- i. the most recent council rates notice; or
- ii. lease agreements to evidence their business was operating in New South Wales on 1 June 2021; or
- iii. if neither of the documents referred to in paragraphs i. and ii. above are available, the NSW Government may, in its discretion, accept other documents as evidence that the Successful Customer was operating in New South Wales, such as utility bills or insurance papers;
d. submit documentation from the relevant council or other authority or person approving both the use of the relevant land for outdoor dining and the creation, expansion or improvement of the alfresco dining area, in accordance with necessary approvals and requirements (this may include council approvals, council permits, site plans approved by the council, and the written consent of the private landholder);
e. submit receipts or other evidence that Eligible Expenses have been incurred and paid during the period of 14 October 2021 to 30 September 2022.
3.7 Notwithstanding any other provision in these Terms and Conditions, the NSW Government may require an Applicant/Successful Customer to provide additional information, including but not limited to:
- i. "before" and "after" photos clearly showing the relevant alfresco dining area works,
- ii. any additional information or clarification about the business from any other public entity or person,
before the making of any decision under this Scheme.
3.8 Eligible Expenses means expenses relating to the creation, expansion or improvement of permanent or temporary alfresco dining areas, and may include expenses falling within one or more of the following categories:
|1.||Temporary ground surfaces:
|2.||Traffic mitigation/barriers (where not provided by a local council):
|3.||Generators (if required)|
|4.||Installation of outdoor power points|
|5.||Lighting including decorative lighting such as festoons|
|6.||Additional furniture for fit-out of the outdoor area including tables, chairs, waiter stations|
|7.||Non-fixed elements such as play spaces, interactive art, way-finding and signage|
|8.||Weather protection for shade and rain, including umbrellas|
|9.||Parklets or similar mobile seating areas|
|10.||Heaters, fans and misters|
|12.||Additional point of sale|
3.9 Each Successful Customer must only submit one claim for payment of a rebate. The NSW Government may, at its discretion, at any time prior to payment allow a Successful Customer to amend or withdraw and resubmit a claim.
3.10 A Successful Customer must retain for 5 years all tax invoices, official receipts, bank statements or other records that demonstrate the Successful Customer’s eligibility to register for and receive a payment as part of the Scheme and how the payment made under the Scheme has been applied by the Successful Customer.
4. Conditions for Payment under the Scheme
4.1 All payments to a Successful Customer under the Scheme are made on the condition that the Successful Customer:
(a) meets the eligibility criteria in clauses 3.2 and 3.8;
(b) complies with the evidence requirements set out in clauses 3.6 and 3.7; and
(c) has complied and is complying with the conditions in clauses 3.9 and 3.10.
4.2 A Successful Customer must take all reasonable steps to ensure that the conditions in clause 4.1 are or have been satisfied at all relevant times.
4.3 By making an application for payment of a rebate, a Successful Customer declares that:
(a) to the best of their knowledge, the conditions in clause 4.1 are or have been satisfied at all relevant times; and
(b) they took and will take all reasonable steps to ensure that the conditions in clause 4.1 are satisfied.
4.4 Information provided by a business as part of or in relation to its application for registration or claim for Eligible Expenses must be true and correct. It is a serious offence to provide false or misleading information to a public authority.
4.5 A Successful Customer must notify Service NSW immediately if they no longer meet the eligibility criteria in clause 3.2 or can no longer comply with these Terms and Conditions.
4.6 Where the NSW Government forms a reasonable opinion that a Successful Customer has received a payment for Eligible Expenses under the Scheme and subsequently received a refund or credit note for the whole or part of the Eligible Expenses, the Successful Customer will repay the whole or part of the payment, as applicable, to the NSW Government within 28 days of being directed to do so by the NSW Government.
4.7 Where the NSW Government advises the Successful Customer in writing that a specified amount has been paid under the Scheme:
- i. as an overpayment; or
- ii. otherwise in error;
the Successful Customer will repay that amount as directed within 28 days of it being so advised.
4.8 The conditions in this clause are terms and conditions imposed by the Minister for Customer Service and Digital Government (or his delegate) on the making of the payment under section 5.7(2) of the GSF Act.
5.1 Successful Customers can apply for a rebate of up to $5,000 to cover Eligible Expenses, where they create, expand or improve permanent or temporary alfresco dining areas (such as footpaths and public spaces), incurred and paid from 14 October 2021 to 30 September 2022.
5.2 Payments will be made only to the first 5,000 Successful Customers who, to the satisfaction of the NSW Government, meet the eligibility criteria, evidentiary requirements and other conditions set out in these Terms and Conditions.
5.3 Payments will be credited to the Successful Customer’s nominated bank account, where possible, within 10 business days of the claim for a rebate being approved.
5.4 Notwithstanding any other provision in these Terms and Conditions, the NSW Government may refuse to register a business or make a payment for any reason, including if the business does not, to the satisfaction of the NSW Government, meet the eligibility criteria in clause 3.2.
6. Recovery of payments
6.1 If a Successful Customer has received a payment under the Scheme and the NSW Government is satisfied that any of the conditions in clause 4 were, or have been, contravened, the payment is repayable on demand and the payment (or part of the payment) may be recovered from the Successful Customer by the Crown as a debt due to the Crown, pursuant to section 5.7(3) of the GSF Act.
6.2 A Successful Customer may be audited or investigated by the NSW Government to determine whether it is complying or has complied with these Terms and Conditions. A Successful Customer or an Authorised Representative who is making or who has made an application on behalf of a Successful Customer must provide any information or documentation that is reasonably required for the purpose of any such audit or investigation.
6.3 Notwithstanding any other provision in these Terms and Conditions, the NSW Government may take civil and/or criminal action (where appropriate), including referral to NSW Police, where the NSW Government reasonably suspects that the Applicant/Successful Customer has failed to comply with the law or these Terms and Conditions.
6.4 A Successful Customer who receives a payment under the Scheme consents to being contacted by the NSW Government for a period of 12 months after receiving a payment under the Scheme for the purposes of reporting on and evaluating the Scheme. A Successful Customer agrees to provide all information that is reasonably required under this clause.
7. Suspension or termination of the Scheme
7.1 Notwithstanding any other provision in these Terms and Conditions, the NSW Government reserves the right to suspend or terminate the entirety or any part of the Scheme at any time.
7.2 Any action taken to suspend or terminate the Scheme will be notified on the Service NSW website.
8. Limitation of Liability
8.1 To the extent permitted by law, the NSW Government (including its officers, employees and agents) will not be liable for any direct, indirect, incidental, special or consequential loss or damage or for any death, illness, personal injury, financial loss or property damage however caused (including by negligence) which may be suffered or incurred by any person arising directly or indirectly out of or in any way connected with the Scheme, including:
(a) any decision to register or refuse to register an Applicant to participate in the Scheme,
(b) any decision to make or refuse to make a payment under the Scheme, including on the basis that funds are unavailable,
(c) any fraudulent application for registration or for payments made under the Scheme,
(d) any breach of these Terms and Conditions, and/or
(e) any decision to suspend or terminate the entirety or any part of the Scheme.
9.1 Any enquiry or complaint is to be directed to Service NSW by calling 13 77 88.
10.1 Applicants are responsible for obtaining their own independent legal and financial advice regarding these Terms and Conditions.
11.1 The NSW Government reserves the right to amend, vary, delete or supplement these Terms and Conditions at any time.
11.2 These Terms and Conditions, as amended, varied, deleted or supplemented from time to time, apply to any future version of, or update to, the IT system that supports the delivery of the Scheme.
12.1 Failure by the NSW Government to enforce any of their rights at any stage does not constitute a waiver of those rights.
13.1 If any term in these Terms and Conditions is prohibited, void, voidable, illegal or unenforceable for any reason whatsoever, then that part is severed from these Terms and Conditions but without affecting the continued operation of the remaining Terms and Conditions.
14. Governing Law
14.1 These Terms and Conditions shall be governed by and must be interpreted in accordance with the laws of NSW. The Applicant and the NSW Government submit to the exclusive jurisdiction of the Courts of NSW and any Court competent to hear appeals from those Courts.
15.1 Clauses 6 and 8 contain continuing obligations and will survive termination of these Terms and Conditions, along with any other clause which by its nature is intended to remain in full force and effect on and after such termination.