Dubbo RSL Memorial Club Limited & Anor v Steppat & Ors [2008] NSWSC 965 | Case summary

JUDGMENT 1 HIS HONOUR: The plaintiffs seek declarations and other relief relating to the status under the Smoke-free Environment Act 2000 (the Act) of two areas of the Dubbo RSL Memorial Club. They are referred to as the "outdoor gaming terrace" and the "TAB outdoor area". In response to the plaintiffs' claim the State of New South Wales has filed a cross summons seeking declarations. The issue to be resolved is of general significance to licensed premises. It concerns whether smoking is allowed in some covered areas of premises which adjoin uncovered, but walled, areas of those premises. 2 The parties have reached agreement as to the relevant facts. Isometric projections of the relevant areas of the Club were tendered together with photographs of those areas. The area described as the "outdoor gaming terrace" is comprised in part of an area covered by a roof in which gaming machines and other facilities are provided. Beyond the roof is an open terrace area. The covered area is comprised of approximately 75 square metres. The open area is approximately 84 square metres. The area described as the "TAB outdoor area" is comprised in part of an area covered by a roof in which there are recreation facilities including television screens and other facilities to facilitate betting. Beyond the roof of that area is an open terrace. The covered area is comprised of approximately 125 square metres. The open area is approximately 75 square metres. 3 The Act has the object of promoting "public health by reducing exposure to tobacco and other smoke in enclosed public places" (s 3). "Public place" is defined and means: "A place … that the public, or a section of the public, is entitled to use or that is open to, or is being used by, the public or a section of the public." 4 "Enclosed" is also defined in the following terms: "In relation to a public place, means having a ceiling or roof and, except for doors and passageways, completely or substantially enclosed, whether permanently or temporarily." 5 Section 7 of the Act makes it an offence for a person to smoke in a "smoke-free area" and s 8 imposes obligations upon the occupier with respect to such an area. "Smoke-free area" is defined in s 6 and means "any enclosed public place" (s 6(1)). Section 6(2) provides that a "smoke-free area", includes "any place, or part of a place", (this will include part of club premises), "that is an enclosed public place (irrespective of the name by which the particular place is known)". Accordingly the fact that the Club has chosen to identify the areas as "outdoor areas" cannot determine their classification for the purpose of the legislation. 6 Section 23 of the Act provides a regulation making power. Clause 6 of the Regulations provides guidelines for determining what places are enclosed. It provides as follows: "(1) The provisions of this clause prescribe guidelines in relation to determining what is an enclosed public place and when a covered outside area is considered to be substantially enclosed for the purposes of the Act. (2) A public place is considered to be substantially enclosed if the total area of the ceiling and wall surfaces (the total actual enclosed area ) of the public place is more than 75 per cent of its total notional ceiling and wall area. (3) The total notional ceiling and wall area is the sum of: (a) what would be the total area of the wall surfaces if: (i) the walls were continuous (any existing gap in the walls being filled by a surface of the minimum area required for that purpose), and (ii) the walls were of a uniform height equal to the lowest height of the ceiling, and (b) what would be the floor area of the space within the walls if the walls were continuous as referred to in paragraph (a).

(5) A gap in a wall or ceiling that opens directly to the outside (other than a gap caused by a door, window or moveable structure being open) is not to be included as part of the total actual enclosed area. (6) A gap, door, window or moveable structure required to be included as part of the total actual enclosed area is to be included as if the wall or ceiling were continuous and the gap, or the space occupied by the door, window or moveable structure, were filled by a surface of the minimum area required for that purpose. (7) In this clause: ceiling includes a roof or any structure or device (whether fixed or moveable) that prevents or impedes upward airflow. locked-open door or locked-open window means a door or window that opens directly to the outside and is locked fully open (that is, secured in its fully open position by means of a key operated lock). moveable structure includes a retractable awning, umbrella or any other moveable structure or device. wall includes any structure or device (whether fixed or moveable) that prevents or impedes lateral airflow." 7 I have examined plans and photographs of the relevant areas. In each case a roofed area has been constructed which is contiguous with the pre-existing enclosed areas of the Club. Either gaming facilities in the "outdoor gaming terrace" or TAB related facilities in the "TAB outdoor area" are provided under cover. Each of these areas is configured as a large room with folding doors which can be secured back to the walls leaving unimpeded access to the area which is uncovered. In both cases the floor covering has been made continuous so that a person moving from within the covered area to the outside moves across the same covering materials. There are continuous walls around each covered area until the open doorways. Walls continue around both of the uncovered areas. The uncovered areas have some tables and chairs for the convenience of patrons, who may be socialising and, perhaps, drinking and/or smoking. 8 The parties are agreed on the measurements of the relevant areas including "notional areas" as shown in the drawings to which I have earlier referred. That agreement is as follows: In relation to the "outdoor gaming terrace" the total area of the ceiling and wall surfaces is not more than 75% of its total notional ceiling and wall area if that area is defined by reference to the entire floor area including both the covered area and the uncovered area. However, it is agreed that the total area of the ceiling and wall surfaces of the internal roofed area of the terrace is more than 75% of its total notional ceiling and wall area. In relation to the "TAB outdoor area" the total area of the ceiling and wall surfaces is not more than 75% of its total notional ceiling and wall area if that area is defined by reference to the entire floor area. However, it is agreed that the total area of the ceiling and wall surfaces of the internal roofed area is more than 75% of its total notional ceiling and wall area. 9 Accordingly, if in each case the covered area comprises the relevant space it will be an "enclosed public place" and accordingly a "smoke-free area." Before determining whether a particular area of a building is an "enclosed public place" it is necessary to identify the area to which the criteria for determining whether it is an enclosed place should be applied. Section 6(2), in combination with Schedule 1, makes plain that, together with each of the other types of premises in the schedule, part of a club premises may constitute a public place. It would follow that each of the disputed areas is a public place. The question is whether they are comprised of two places, one covered and the other uncovered. 10 The plaintiff submitted that the whole of each of the areas constituted a single public place for the purpose of the calculations pursuant to cl 6 of the Regulations. In relation to the "outdoor gaming terrace" area it was submitted that there were five considerations which would lead to the conclusion that it was one place. Those matters were the existence of continuous walls along the covered and uncovered portions; the whole area has a significant uniformity of purpose, namely an area for drinking and playing gaming machines, the area is a single place with no internal obstacles or barriers to free movement; the whole area is a single designated place in which patrons may smoke while playing gaming machines or drinking and the whole terrace area would present to an objective observer as a single place. 11 I do not accept this submission. Although the walls are continuous the area does not have a uniformity of purpose. The gaming facilities are confined to the covered area. The uncovered area could not be utilised for that purpose and could only be utilised as an outdoor area for socialising and related activities. In my judgment it does not present as a single place even though there are no internal barriers. It would be properly be described as a gaming room and an external terrace. 12 In relation to the "TAB outdoor area" the plaintiffs made similar submissions. However, I am also of the opinion that the area is comprised of two places. The covered area is an area used for viewing races on television, playing gaming machines and other facilities and apparently for dancing. The uncovered area would no doubt be utilised for drinking and socialising. The total area would properly be described as a room providing TAB and related facilities and an external terrace. 13 The Act provides that an "enclosed public place" is a public place having "a ceiling or roof and … is completely or substantially enclosed". Accordingly, it was submitted by the State that only areas of a building with a ceiling or roof could be places which are "completely or substantially enclosed." Areas without a roof could never be enclosed places. In my opinion this submission is correct and accords with the object of the Act. If the area in question is not covered by a roof the opportunity is available for smoke to disperse to the atmosphere. However, when the relevant place has a roof the smoke may only escape laterally and the extent of lateral openings becomes the critical issue affecting the healthiness of the premises. 14 This approach to the Act is confirmed by the Regulations. The guidelines in clause 6 of the Regulations provide the measurements and calculations which are to be carried out in order to determine whether a particular public place "is substantially enclosed." Clause 6(1) states that the clause prescribes guidelines, in relation to determining what is an "enclosed public place" and when "a covered outside area" is considered to be "substantially enclosed". The guidelines must be applied in order to determine whether, in respect of a particular area, the second limb of the definition of "enclosed public place" is satisfied. It is only necessary to undertake the calculation if the first limb of the definition of "enclosed" is satisfied in the sense that the area has a "ceiling or roof". The guideline proceeds from the assumption that the calculation is being made with respect to an area which is covered. The guidelines in the Regulations have no application to a place which does not have a ceiling or roof. If there are gaps in the ceiling or roof, that place must be assessed by reference to clause 6(4) and (5). The outdoor areas in the present case could not be described as gaps in the ceiling or roof area of the indoor places. 15 It would be a surprising result if, because it is possible to access the uncovered area of a building from a covered area, the former being walled, the status of the covered area changes. If the uncovered area did not have walls there would be no question that it would be irrelevant to the determination of the status of the covered area. The fact that it has walls does not change its status and nor does it change the status of the adjacent covered area. 16 For these reasons the plaintiffs' summons must be dismissed with costs. I make the orders sought in the defendants' cross summons as follows:

Dubbo RSL Memorial Club Limited & Anor v Steppat & Ors

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Judgment (14 paragraphs)

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