When is a bar not a bar? And why do the patrons of this beer and wine-selling establishment have to sit down?

The ongoing saga of Gallery on Waymouth, a self-styled art gallery and cafe, has stumped the Licensing Court.

The court’s Judge Brian Gilchrist is looking for a way to allow the popular nightspot to remain open, serving food and drinks to 180 patrons, while all the while maintaining it’s not a bar.

Owners Alex Taylor and John and Tom Waltham agreed to strict conditions in 2010 when they opened the establishment as principally an art gallery with a special-conditions licence to serve some food and alcohol.

They then developed plans in early 2013 to do extensive renovations that linked its roof to that of a neighbouring building, on the corner of Anster Street.

This led to an application for a redefinition of the premises.

It drew objections from the Commissioner of Police, Adelaide City Council and nearby venues.

Most of the concerns were sorted out in discussions between the parties, providing “there shall be no dance floor”, and the owners would “not promote the premises in any way whatsoever as a bar, lounge bar, lounge, tavern, inn, hotel, beer garden (or incorporating a beer garden), club, nightclub or karaoke bar”.

Shortly after the venue re-opened, the owners wanted the restrictions removed.

In evidence tendered to the court, they admitted that the premises had been advertised in a brochure as a rooftop bar, and that video taken at the premises showed “loud contemporary music was being played and that some patrons were consuming liquor whilst standing”.

Waltham told the court there had been particular difficulty in convincing patrons that they had to sit down when drinking.

“He said that patrons often moved away from a chair and consumed liquor and that it seemed ridiculous having to tell them to sit down,” the Judge said in his summary of evidence.

“He said, ‘I can’t think of a better word other than nagging; you’re nagging your customer to sit down, when they’re about to sit down anyway, so we’re so paranoid about getting caught out in it that we don’t allow it to happen’.”

The court heard that the premises offered a specialist range of vodkas, and patrons had access to a number of high tables and stools, which did not lend themselves to eating, in contrast to lower tables which would encourage café dining when seated.

And therein lies the sticking point: if the patrons were sitting down, it would be feasible to accept the cafe and gallery wasn’t a bar – except that the court acknowledges that forcing patrons to remain seat while drinking is unworkable.

Judge Gilchrist acknowledged that the original intentions and restrictions agreed to in the 2010 licence had been long departed from.

“It is too late for the objectors to be complaining about this now,” he said.

“This is a challenging case that concerns two aspects of the public interest that point in opposite directions.

“On the one hand, it is in the public interest to expect licensees and would-be licensees to act in good faith in their negotiations with objectors and interveners, and to faithfully accept and honour conditions imposed upon a licence that they agreed to in those negotiations.

“On the other, it is not in the public interest to subject a licensee or members of the public to a condition that is practically unworkable.”

So, whose concerns should hold sway? The objector who had been promised it would be an art gallery and not a bar, or the owners who had seen their art gallery cafe turn into a popular and vibrant after-work venue?

“I regard this a truly exceptional case,” Gilchrist said.

“Although I have found that the condition regarding being seated whilst drinking liquor is practically unworkable, there is considerable force in the submission made by the objectors that having effectively given an undertaking that the premises would not trade as a bar, steps should be put in place to ensure that that undertaking is honoured.

“I am concerned that the removal of the requirement that patrons do not have to be seated whilst consuming liquor could lead to patrons standing at the bar to drink and that much of the rooftop area would become indistinguishable from a bar.

“That would be contrary to the spirit of the negotiations … and … to what Mr Waltham told the Court was the nature of the business that the applicant wishes to conduct.”

Judge Gilchrist then adjourned proceedings to allow time for the owners to come up with a description that “makes it clear that the area in question is not able to trade as a bar” and to pay the legal bills of the objectors.

In the meantime, patrons must remain seated, stop dancing and enjoying loud music – as though they were in a bar.

And who said vibrancy was easy?

This is not a bar!