Maisano v Port Phillip CC [2007] VCAT 62

Maisano v Port Phillip CC [2007] VCAT 62 - VCAT 2007 case summary — Zoe

[10]

9 The subject land features a three storey commercial building which is built out to all of its boundaries. It was common ground at the hearing that the site has historically been used for many years as a Chinese restaurant known as the "Tai Ping Restaurant". Council advised that no planning permit has previously been issued for the use of the land as a restaurant, as council accepts that the restaurant use commenced prior to the introduction of planning controls. It would appear that the seating capacity of the former restaurant area is somewhere between 200 and 266 diners. The site has the benefit of an on-premises liquor license granted in respect of a restaurant. This liquor licence authorises the licensee supply liquor on the subject land between 10am and 11.30pm on Sundays, and otherwise (subject to more restricted hours on certain public holidays) between 7am and then 1am the following morning on any other day.

10 The site is located in the middle of the very busy St Kilda Junction, on the corner of Punt Road and Nelson Street. It has an overall area of 293 square metres and is currently vacant. Nelson Street has a mixed use character, with a greater degree of residential activity as one moves further east along the street from the appeal site. Similarly, Wellington Street to the south (which runs parallel with Nelson Street) has a mixture of commercial and residential uses, but in the context of a long term trend towards greater residential activity.

11 On the other side of Nelson Street from the subject land is the Queens Way underpass. To the north-west of the subject land (ie. on the other side of the arterial road) is the beginning of Queens Road which features office development. To the south-west of the subject land is the extension of St. Kilda Road plus the beginning of Fitzroy Street.

12 In relation to other existing hotels/taverns, it was common ground that there are two or three other such uses within a reasonable vicinity of the subject land. I understand that neither of the closest hotels (the Elephant & Wheelbarrow and the Windsor) are licensed to trade any later than 3.00 am.

[27]

39 In general, we consider that a suitably designed and located outdoor area for smoking should be provided on the site of the licensed premises. By "suitably designed and located" we mean that the outdoor area meets the appropriate criteria in the tobacco laws and that its use will not give rise to any adverse off-site amenity impacts relating to noise, odour, or patron behaviour.

40 This may mean with respect to new uses requiring a planning permit that if a suitably designed and located outdoor area cannot be provided on-site, the use should not be permitted. Whilst this may seem harsh it is a consequence of the tobacco laws designed to protect occupational and public health by making licensed premises smoke free. There will be costs associated with such measures. Those costs cannot be avoided simply by pushing the attendant affects off-site and permitting smoking to occur in locations where noise will interfere with people's sleep at night or other adverse affects will be experienced.

41 We consider that a similar approach would also apply to existing uses, although recognised that it may not always be possible to implement this approach with the planning system. It would be up to the Director of Liquor Licensing as what conditions should be imposed when licenses are renewed or varied.

42 It may be argued that a requirement to provide an on-site outdoor smoking area undermines the tobacco laws requiring a licensed premises to be smoke-free. We disagree. The new tobacco laws do not ban smoking per se. They only ban it within closed areas because of the risk to health associated with people being in a smokey atmosphere. Smoking will still be permitted in outdoor areas.

43 As we said earlier, we are satisfied that a proportion of patrons attending licensed premises will want to smoke. We consider that licensed premises should therefore cater for these patrons on-site. If they can't then this is indicative that the premises are suitable to be used as licensed premises under this new regulatory regime.

[42]

30 In Lee v Stonnington CC (VCAT P1753/2006), Senior Member Baird similarly was considering the proposed use of an existing building as a tavern, in a location just off Chapel Street in South Yarra. She issued an interim decision on 27 October 2006, allowing the applicant an opportunity to lodge further information with the Tribunal regarding the proposed management arrangements for the premises. As part of her interim decision, Member Baird indicated real concerns about the proposed 3.00 am closing time, the emerging presence of other licensed premises in the immediate area, and the likely issues associated with patron behaviour off-site including smoking.

31 The Noise and Amenity Action Plan provided by the applicant pursuant to Member Baird's interim decision indicated that smokers will be directed to the footpath in front of the site and will be required not to impede pedestrian movement or create a nuisance. In reaching her final decision, Ms Baird indicated at paragraph 16 that her primary concern remains the control of patrons in this footpath area. In this regard, she highlighted the narrow nature of the footpath and the possibility (given this lack of footpath space) of activity spilling into the street or other nearby areas. At the penultimate paragraph of her decision, Senior Member Baird concludes that the proposal must fail due to what she considers an undue risk of unreasonable impacts from the proposed tavern on nearby premises.

32 The Tribunal decision of The Garden on Exhibition Pty Ltd v Melbourne CC (VCAT P1221/2006) involved a proposed tavern accommodating up to 460 patrons in two building structures and an open air beer garden at 275-285 Exhibition Street in Melbourne CAD. In refusing the proposal, the Tribunal discussed at pages 12 to 14 its concerns regarding the potential amenity impacts of the proposal, including the implications of queuing on the footpath area. With respect to the requirement for an outdoor smoking area, the Tribunal acknowledged at pages 14 to 16 that the proposal involved the availability of the beer garden to smokers, but expressed concern about the potential for "nuisance issues" if smokers nevertheless seek to smoke outside the premises.

[46]

36 Having considered these competing submissions, the Tribunal's own finding is that the front facing upper room relied upon by Mr Dietrich does not constitute an "outdoor smoking area" for the purposes of the new tobacco legislation and the requirements spelt out in the Ryan decision. In particular, I reject Mr Dietrich's suggestion that excluding the wall area occupied by the front windows will result in a situation where the remaining wall area will be less than 75% of the total notional wall area (thereby making the upper front room constitute an "outdoor smoking area"). Rather, from my inspection of the site and from the extensive photos provided to me at the hearing, I am satisfied that deducting the notional wall area taken up by the front windows will not even go close to reducing the total notional wall area below the benchmark 75% figure.

37 Hence my finding is that the upper front facing room does not constitute an "outdoor smoking area" for the purposes of the new smoking laws, but in fact constitutes an ordinary inside room of the tavern that the new tobacco legislation and the Ryan decision requires to be smoke-free.

38 In relation to Mr Dietrich's alternative submission that I should allow part of the adjoining footpath area to be used as an outside smoking area, I see this in the circumstances as a desperate suggestion that lacks any credibility.

39 As a starting point, the Ryan decision indicates that a footpath smoking area is only appropriate for a "small scale venue". Even with the cap on the potential patronage of the proposed tavern reduced from 400 to 300, I am not satisfied that premises serving up to 300 persons can be reasonably described as "small scale".

40 In addition, I regard the suggestion that the abutting footpath area can be used for smoking as entirely unworkable for the following reasons.

41 Firstly, the footpath areas along side the building on the site are relatively narrow. There would be obvious logistical issues with trying to accommodate tables and chairs for an outdoor smoking area on this narrow footpath area or otherwise create a separate smoking area. I accept that there would be problems here with the minimal area that would then be left for ordinary passing pedestrian traffic, together with potential problems if patrons need to queue outside the building at times of high demand to get inside. I note that the Tribunal in the Lee decision was also concerned about the narrow aspect to the footpath in question, and that the Tribunal in the Garden in Exhibition decision saw logistical issues with patrons queuing on the footpath area.

42 Secondly, this is an unusual site, in that it is located in the heart of a very busy junction of several major roads. An inspection of the site reinforces that there are huge levels of traffic passing very close to the site, often at considerable speed. The relatively narrow nature of the footpath makes this situation worse (compare this with the widened footpath area next to the Elephant & Wheelbarrow hotel further south-west along Fitzroy Street)[1]. In this regard, several objectors who made submissions at the hearing emphasised the real risk of vehicles mounting this footpath area if vehicles travelling at considerable speed close to the subject land lose control. I was told that a dramatic example of this problem was a fairly recent accident where a vehicle crashed into the front windows of the nearby scooter/bicycle shop two lots further along from the subject land.

43 Thirdly, I consider that I need to give some degree of weight to the reality that many pedestrians today do not necessarily utilise the traffic lights at the nearest intersection to cross even a busy road, or otherwise may start crossing the road at a signalised intersection before the "green person" light comes on. One only needs to walk around Melbourne CBD to see plenty of evidence of this. The risk of this impulsive pedestrian behaviour would be worse on those occasions where any of the patrons of the proposed tavern are influenced by alcohol.

44 These factors outlined above point to any proposal for an outside smoking area on the abutting footpath area being quite inappropriate and unworkable, and in all likelihood unsafe.

45 Having rejected both of the positions put forward by Mr Dietrich in terms of the compliance of the proposal with the new tobacco legislation, my overall finding then is that the proposal fails to meet the requirements of this new legislation and the Ryan decision.

46 In relation to the Hameon decision mentioned above, I see that decision as turning on its own facts, and as not offering any assistance to the Applicant here. The important differences here are that:

[49]

47 Beyond the failure of the proposal to meet the requirements of the new smoking laws and the Ryan decision, I also have major unresolved concerns about the "residential amenity" and "pedestrian safety" aspects of the proposal.

48 With respect to residential amenity issues, even allowing for the reduced patron cap of 300 persons, I still see a major risk here that the proposed tavern use would cause substantial amenity disruption to the considerable number of nearby residents, notably those living in Nelson and Wellington Streets. While I acknowledge that both of these streets have a mixed use character, it is significant that the relevant council local policies are promoting more rather than less residential activity in this locality[3]. I am also conscious that even the proposed compromise hours of operation involve trading until 5.00 am on certain days of the week, which is two hours into the night later than either of the nearest hotels are licensed to trade.

49 I give weight here to the fact that the objectors have highlighted existing residential amenity tensions, in terms of persons walking along Nelson Street at late hours from one local hotel to another, and apparently causing problems with excessive noise, inappropriate behaviour and occasional property damage. I note that Nelson Street seems a logical pedestrian route if a patron was walking from the Elephant & Wheelbarrow hotel to the nearby Windsor Hotel on the other side of the Dandenong Road underpass (or vice-versa).

50 These potential patron behaviour issues need to be viewed in conjunction with the fact that the proposal cannot provide any on-site car parking. Whilst I acknowledge that many perspective patrons of the tavern will use a taxi to get home, it seems reasonable to still anticipate that a group of patrons will drive to the site and look for a nearby on-street car park. Whilst on the one hand I acknowledge that Council's traffic department did not object to the lack of any on-site parking, on the other hand I would expect that the new tavern to significantly increase the demand for on-street parking in Nelson and Wellington Street (meaning more noise and less available on-street parking for the residents of those two streets).

51 Turning to pedestrian safety issues, I am very concerned (with or without the requirements of the Ryan decision and the new smoking laws) at the real potential for pedestrian accidents associated with the proposal. In other words, I see the fairly narrow footpath area, the large volumes of passing traffic (often at speed) and the likelihood of queuing outside the building as together creating a real risk of pedestrian activity spilling from the footpath onto the road in this exceptionally busy junction location.

52 To avoid duplication, I refer to my comments at paragraphs 41 to 43 above, regarding factors which I see as central to the pedestrian safety problems that I anticipate would arise from the proposal. These risks are obviously exacerbated if any patrons of the facility are unduly affected by alcohol or where there is any reckless driving by passing motorists.

At a glance

Court

Decision date

Source

Judgment (52 paragraphs)

Maisano v Port Phillip CC [2007] VCAT 62 (18 January 2007)

Parties

Legislation Cited (1)