Ground 3: approval under s 68 Part E LG Act
54Ground 3, as pleaded, is that the no smoking conditions are invalid for the following reasons: (a) there is no power under SIPP November 2011 to impose any no smoking conditions on any approvals under s 68 Part E of the LG Act because that SIPP is in its terms limited to leases and licences; and (b) the smoking ban imposed by condition 7(e) of the LG Act approvals (and condition 15 of the Roads Act approvals) provides that "For the purposes of this clause, 'smoking' is the activity described in the Smoking in Public Places Policy (December 2011) adopted by Council", which in fact was not adopted by the Council. The second of these two distinct arguments disappeared from sight in the applicants' written submissions but was resurrected in its oral submissions.
55A third argument, related to the second, emerged in the applicants' oral submissions and was fully argued. It is that, under the instruments of delegation, the power of the Council's sub-delegate who issued the LG Act and Roads Act approvals could only be exercised in accordance with SIPP November 2011 adopted by the Council, and the said statement in the conditions shows that that limitation was exceeded.
56As to the first argument, a council has power under s 94 of the LG Act to determine an application under s 68 Part E subject to conditions. The source of the power is not a policy of a council. The power to impose conditions pursuant to s 94 is not at large. A condition must be "reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made": Allen Commercial Constructions Pty Ltd v Council of the Municipality of North Sydney [1970] HCA 42, 123 CLR 490 at 499 per Walsh J.
57The applicants submit that a condition in approvals under the LG Act imposing an obligation on the holder to ensure that no smoking occurs in the area the subject of the approval is not reasonably capable of being regarded as related to the Council's power to grant such approvals.
58Chapter 7 of the LG Act (ss 68 - 184) sets out the major regulatory functions of councils. It lists the activities that are regulated and it sets out the means of their regulation. The introduction to Chapter 7 provides that a council, in relation to a range of activities within its area, exercises regulatory functions of two main kinds, the first being that various activities can only be carried out if the council gives its approval.
59It is convenient to repeat some of the relevant provisions of the LG Act. Under s 68 Part E, approval is required to (emphasis added):
1 Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway
2 Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road.
60Section 94 provides:
94 Determination of application
(1) The council may determine an application:
(a) by granting approval to the application, either unconditionally or subject to conditions, or
(b) by refusing approval.
61Section 89 provides (emphasis added):
89 Matters for consideration
(1) In determining an application, the council:
(a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and
(b) must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, and
(c) must take into consideration the principles of ecologically sustainable development.
(2) If no requirements are prescribed for the purposes of subsection (1) (a), and no criteria are adopted for the purposes of subsection (1) (b), the council in determining an application:
(a) is to take into consideration, in addition to the principles of ecologically sustainable development, all matters relevant to the application, and
(b) is to seek to give effect to the applicant's objectives to the extent to which they are compatible with the public interest.
(3) Without limiting subsection (2), in considering the public interest the matters the council is to consider include:
(a) protection of the environment, and
(b) protection of public health, safety and convenience, and
(c) any items of cultural and heritage significance which might be affected.
62As indicated by s 89, consideration of the public interest - including the protection of "public health" and "convenience" - is a factor that is to be taken into account in the determination of an application for approval under s 68 Part E of the LG Act.
63SIPP November 2011 is replete with references to the obligation of the Council to promote "public health outcomes" and to the Council's commitment to protect members of the community from the health and social impacts of second-hand cigarette smoke, and improve the natural environment and the amenity of the local area by reducing the amount of cigarette butt litter in outdoor spaces.
64It follows that the determination of an application for approval under s 68 Part E of the LG Act, which includes imposing a condition designed to protect "public health, safety and convenience", is within power under s 94 because it is reasonably capable of being regarded as related to the purpose for which the function of the Council is being exercised.
65I turn to the applicants' second argument: that the no smoking conditions described smoking by reference to the description of smoking in SIPP December 2011 "adopted by Council" when in fact it was not adopted by the Council. This description of smoking did not appear in SIPP November 2011. This is material because the description of smoking in SIPP December 2011 purported to extend the ordinary concept of smoking by the following description: "Smoke: Means to smoke, hold or otherwise have control over an ignited smoking product and Smoking has a corresponding meaning". The ordinary concept of smoking is extended by the words "hold or otherwise have control over an ignited smoking product". In my opinion, on their proper construction, the no smoking conditions were premised on SIPP December 2011 having been adopted by the Council. As they were not in fact adopted by the Council, they are inoperative or alternatively may be characterised as invalid.
66I turn to the applicants' third argument: (a) that if the Council has power, the power could only be exercised by its sub-delegate who issued the approvals under his instrument of sub-delegation in a way that was consistent with the policies and decisions of the Council; (b) the reference to SIPP December 2011 in the no smoking conditions shows that this limitation was not observed; and (c) consequently, those conditions were beyond the sub-delegate's power and invalid.
67The instrument of delegation by the Council to its General Manager of its powers, functions, duties and authorities limited the delegation by requiring the General Manager to exercise his delegated functions in accordance with and subject to "all and every policy adopted by resolution of the Council and current at the time of the exercise of the functions herein delegated". The General Manager sub-delegated relevant functions, including the approval of outdoor dining, to the Manager Strategic Asset Management in an instrument which stated that the sub-delegation "may only be exercised in a way that is consistent with the policies and decisions" of the Council.
68In my opinion, as the conditions adopted the extended concept of smoking in SIPP December 2011 which did not appear in SIPP November 2011, the sub-delegate did not exercise his delegated function in a way that was consistent with a policy of the Council, and therefore exceeded his power under the instrument of sub-delegation. In my opinion, the no smoking conditions are invalid for that reason.