Ryan v Port Phillip CC [2006] VCAT 1923

Ryan v Port Phillip CC [2006] VCAT 1923 - VCAT 2006 case summary — Zoe

[24]

10 Where licensed premises interface with residential premises noise is a particular problem. Many planning permits require noise attenuation measures to contain noise from music or other sources from licensed premises. Such measures are proposed as part of this proposed tavern. The layout of premises and the areas to which patrons may have access are also frequently of concern and form the subject of conditions in permits. As a matter of general principle, it is important that any outdoor areas where smokers may congregate are shielded from residential uses to avoid disturbing residents' amenity, particularly when they are trying to sleep.

11 We were told that many existing licensed premises are undertaking alterations, additions and renovations to make available a balcony, a courtyard, rooftop or other similar area which will meet the legislative requirements of an outdoor area that will not need to be smoke free once the new tobacco laws come into operation. However, we note that in the education material being provided by the Government and the AHA about the new tobacco laws and what sort of outdoor dining and drinking areas will comply with the legislation, there is no emphasis on the need to ensure that such outdoor areas can be used for smoking without detrimentally affecting off-site amenity. No attention is drawn to the importance of where such areas should be located or the possible need for noise attenuation.

12 We do not consider it is wise or appropriate having regard to the legislative and policy context in Victoria to adopt a head-in-the-sand approach to what will happen when people can no longer smoke in licensed premises. Some patrons may choose not to smoke at all, but there will be a proportion of others who will still wish to smoke and who will go outside to do so, either outside on the premises or onto the footpath. It is not socially responsible to make premises smoke free and then ignore where patrons go to smoke and the effects of their behaviour on other people.

13 Whether people use outdoor areas provided on the premises or smoke on the footpath, there will be potential consequences for other people. Those consequences should be acknowledged now. Measures should be adopted to deal with them before the tobacco laws come into effect rather than waiting for problems to occur which are then passed on to other people - residents and local councils - to deal with.

[25]

14 The tobacco laws requiring licensed premises to be smoke free are a response to an occupational and public health problem. It is important that when implementing the law to address one problem, the measures introduced do not indirectly cause other problems, including detrimentally affecting amenity due to sleep disturbance.

15 Planning policies in recent years have encouraged greater residential use in activity centres. It is recognised that people living in or abutting activity centres and business zones cannot expect to enjoy the same residential amenity as people living in a purely residential environment. However, this is not to say that such people are not entitled to a reasonable level of amenity especially in terms of getting a good nights sleep. Hence State Environment Protection Policies regarding noise - SEPP-N1 (Control of Noise from Commerce, Industry and Trade) and SEPP-N2 (Control of Music Noise from Public Premises) - both deal with noise sensitive areas, which include residential buildings, hospital wards, hotels and motels, and both aim to protect normal domestic and recreational activities. In the case of each SEPP, sleep at night is included as an important beneficial use to be protected.

16 Key objectives of planning in Victoria set out in the Planning and Environment Act 1987 include securing a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria.[4] The objectives of the planning framework established by the Act include ensuring that effects on the environment are considered and there is explicit consideration of social effects when decisions are made about the use and development of land.[5] Effect on amenity is always a major consideration in the decision whether to grant or refuse a planning permit under the Act.

17 The objects of the Liquor Control Reform Act 1998 include ensuring as far as practicable that the supply of liquor contributes to, and does not detract from the amenity of community life.[6] The issue of amenity is specifically addressed in the Liquor Control Reform Act 1998. For the purposes of this Act, the amenity of an area is the quality that the area has of being pleasant and agreeable.[7] Factors that may be taken into account in determining whether the grant, variation or relocation of the licence would detract from or be detrimental to the amenity of an area include noise levels and the possibility of nuisance or vandalism.[8]

18 One of the grounds on which the Director of Liquor Licensing may refuse a liquor licence application is that the granting of the application would detract from or be detrimental to the amenity of the area in which the premises to which the application relates are situated.[9] It is a condition of every liquor licence that:

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35 It is a fundamental planning principle that uses and developments should preferably handle amenity impacts and regulatory compliance on the site. Impacts and compliance measures should not be moved off-site onto other land or into the public realm.

36 The footpath is part of the public realm. There appears to be a commonly held assumption that if the footpath is the only option where people may smoke once licensed premises become smoke free, then that is where they should go. However, this begs the question as to whether, as a matter of public policy, it is reasonable to use the public realm to cater for an integral aspect of the use of adjoining land. In other words, should a licensed premises, which is required by law to be smoke free, be able to rely upon the public realm to cater for patrons who want to smoke but cannot do so within the venue?

37 In recent years there has been a dramatic change in the use of the public realm as an adjunct to use of other premises. For example, the relaxation of liquor licence laws mean that it is commonplace for cafes and restaurants to have a licensed outdoor area on the footpath which is used for eating and drinking. Legislation requiring shops, workplaces, theatres etc, to be smoke free has also meant that people from these venues who wish to smoke now congregate on footpaths for this purpose. A direct consequence of the new tobacco laws will be an increase in this change of use of the public realm. The question is to what extent this should be permitted or encouraged.

38 We consider that in line with changed community attitudes towards use of the public realm it is reasonable that footpath areas which are already part of approved licensed premises may be used as an outdoor area for smoking. It is also reasonable that in some other circumstances footpaths can be used in conjunction with small scale venues subject to a suitable management plan because the effects will be limited and within acceptable bounds. But it is not reasonable to expect that, in general, the public realm will be available as the primary place to accommodate patrons attending licensed venues who wish to smoke but are unable to do so within the premises themselves. This reflects the principle that a use should handle its effects on-site.

[38]

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 effects off-site and permitting smoking to occur in locations where noise will interfere with people's sleep at night or other adverse effects will be experienced.

41 We consider that a similar approach should also apply to existing uses, although we recognise that it may not always be possible to implement this approach through the planning system. It will be up to the Director of Liquor Licensing as to 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 licensed premises to be smoke-free. We disagree. The new tobacco laws do not ban smoking per se. They only ban it within enclosed areas because of the risks 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.[11] If they can't, then this is indicative that the premises are unsuitable to be used as licensed premises, under this new regulatory regime.

At a glance

Court

Decision date

Source

Judgment (58 paragraphs)

Ryan v Port Phillip CC [2006] VCAT 1923 (19 September 2006)

Parties

Legislation Cited (1)