23 July 2007
Key Points:
It is now essential that permit applications for the establishment of new licensed premises include a proposed outdoor smoking area, or for many existing licensed premises to apply for a planning permit to develop a new outdoor smoking area. The critical issue is how to manage the associated amenity impacts, principally the increase in noise from patrons smoking outside.
As of 1 July 2007 smoking is no longer permitted in:
This article explains the changes introduced on 1 July and sets out the planning implications of the new laws on licensed premises.
The changes: before and after 1 July 2007
Before 1 July 2007, existing licensed premises in both Victoria and New South Wales were subject to temporary exemptions from the smoke-free requirements of the Tobacco Act and the Smoke-free Environment Act. The scope of these exemptions have been gradually phased out so that smoking is only permitted in licensed premises in New South Wales in areas which are not enclosed public places. As for Victoria, the only area where smoking is permitted in licensed premises is in outdoor dining and drinking areas which are likewise not enclosed.
"Enclosed" is defined in both New South Wales and Victoria by reference to an area which is "substantially enclosed", either permanently or temporarily and an area will be substantially enclosed if 75 percent of the total notional ceiling and wall area is actually or physically enclosed.
Planning issues
As a consequence of the changes, it is now essential that permit applications for the establishment of new licensed premises include a proposed outdoor smoking area. Also for many existing licensed premises unable to manage smoking on site in accordance with the new changes, it has been necessary to apply for a planning permit for the development of a new outdoor smoking area.
The critical issue however in relation to these planning applications is how to manage the associated amenity impacts, principally the increase in noise from patrons smoking outside.
As there are no provisions in the Tobacco Act or the Smoke-free Environment Act that require premises to manage off site amenity impacts, the question is whether in a planning context the operators of licensed premises should be held responsible and to what extent.
Ryan v Port Phillip City Council [2006] VCAT 1923
The leading decision in Victoria on the effect of new smoking requirements on planning is Ryan v Port Phillip City Council [2006] VCAT 1923, which involved an application for review against the Council's decision to grant a permit for use of a premises as a tavern brought by a neighbour who was concerned about the impact the proposed use may have on residential amenity.
While the Tribunal was prepared to uphold the decision to grant a permit, the plans which accompanied the application did not make provision for an outdoor smoking area.
In anticipation of the changes to the Tobacco Act the Tribunal required the permit applicant to provide further information on this point and adjourned the hearing to a later date at which time a broad group of stakeholders addressed the Tribunal as to how associated impacts on amenity and the environment should be managed as a result of making licensed premises smoke-free.
At the hearing, the Tribunal varied the Council's decision to grant a permit by imposing a condition that an outdoor smoking area was to be developed on site. According to the Tribunal:
"The concern is that by forcing smokers to congregate in outdoor areas to smoke, this will give rise to potentially adverse off-site environmental amenity impacts through noise, unruly behaviour, odour and butt litter."
Further, the Tribunal held that a licensed premises should handle its effects on site and concluded that the most effective way of managing off-site issues was to ensure that outdoor areas are suitably designed and located such that their use will not give rise to any adverse off-site amenity impacts.
Finally, the Tribunal went on to say that it was unreasonable to expect that footpaths could be used as the primary place to accommodate smokers from a licensed venue, unless it were of a small scale.
In circumstances where such a design can not be achieved, occupiers and applicants of proposed licensed premises should brace themselves for an outcome similar to that in Maisano v Port Phillip City Council [2007] VCAT 62 where the Tribunal refused to issue a permit for use as a licensed premises because of amenity concerns associated with smoking off-site.
Recently, in Sargood Properties PL v Melbourne City Council [2007] VCAT 1192 the Tribunal questioned the extent to which outdoor smoking areas can be effectively designed to minimise adverse noise impacts. In this case, the Tribunal set aside the Council's decision to grant a permit to use and develop a site as a tavern. In doing so it commented that to avoid adverse amenity impacts via a smoking deck depends too much on ensuring exemplary behaviour of patrons to ensure that doors are always closed.
Hilrok Properties Pty Ltd v Manly City Council [2007] NSWLEC 224
The decision of Hilrok Properties Pty Ltd v Manly City Council concerned an application to develop the Ivanhoe Hotel for the purpose of extending the gaming facility and constructing an outdoor smoking area directly onto the Manly Corso. However, the Court had similar concerns to those referred to above in relation to smoking on footpaths, and held that it was not appropriate to provide a smoking facility to the Corso, which is the main pedestrian thoroughfare from the ferry wharf to the beach.
Further, the Court went on to say that the smoking facility was not consistent with the policy of the Corso being a smoke-free public domain area and that it was against the objective of the planning regime in terms of promoting an active street frontage.
While the Court had been prepared to consider the development of a smoking area to the rear of the premises, the permit applicant identified operational issues with this option which prevented its implementation.
Environment Protection Act and local government laws
Local councils across Victoria and New South Wales have also expressed concern about the ramifications of pushing smokers out of venues and onto the footpath. In terms of cigarette butts, it is clear that licensees are not responsible for the litter left by their patrons on footpaths. Rather it is patrons of licensed premises who are caught disposing of cigarette butts or any other litter on the footpath or road who may be issued with a litter abatement notice under the Environment Protection Act 1970 (Vic).
In the absence of a practice of having EPA litter enforcement officers routinely monitor licensed premises for the purpose of issuing fines Yarra City Council has considered the implementation of a Local Law targeted at cigarette butt litter. If introduced, the law would deem an occupier of premises responsible for litter deposited on the footpath or roadway directly adjoining their premises, where the occupier did not provide:
To date, no such laws have been introduced, however it does highlight the path some councils may be willing to take in reducing amenity impacts, in addition to the imposition of more stringent conditions on planning approvals.
Permit conditions
A good example of this is the recent decision by Melbourne City Council to approve a permit application for the Young and Jackson's Pub to build an open-air smoking deck. The permit approval is subject to 14 conditions, which respond to objections received from Unilodge and McDonalds Australia, claiming adverse amenity impacts. The conditions imposed include restrictions on noise and the hours of operation, and that undue detriment must not be caused to the amenity of the area in connection with the use of the deck, during or immediately after the opening hours authorised by the permit. It is yet to be seen whether an application for review of the Council's decision will be made to VCAT.
Conclusion
It is clear that the Tobacco Act and the Smoke-free Environment Act have fundamentally changed the way existing licensed premises are permitted to operate. With smoking now prohibited in enclosed areas, licensed premises that do not presently have an outdoor smoking area risk losing patrons to a venue which adequately caters for smokers or possibly sanctions by local councils or the EPA for failure to dispose of cigarette butts.
For new licensed venues the ramifications of the new laws are much more severe. Recent decisions from Victoria suggest that without a suitably designed and located outdoor area, it is likely that proposed sites will be considered unsuitable for use as licensed premises. With the very real possibility of adverse off-site amenity impacts, the Tribunal and the Court have been quick to comment on how best to minimise such impacts through appropriate planning. However it remains to be seen how councils or the EPA across New South Wales and Victoria will respond to control amenity impacts of outdoor smoking areas that are not capable of being regulated by the planning system.
For further information, please contact Sallyanne Everett.
