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June 2012 – Council’s power to impose a ban on smoking in outdoor dining areas

In the recent case of Parramatta Business Freedom Association Inc v Parramatta City Council [2012] NSWLEC 139, before Biscoe J, the L&E Court considered whether councils have the power to impose smoking bans on outdoor dining areas located on footways of public roads, as a condition of approvals granted under the Roads Act 1993 and the Local Government Act 1993.

The Background and Facts

The Applicants were the Parramatta Business Freedom Association Incorporated whose members included the owners of five restaurants, and another restaurant owner. In the course of their businesses, some restaurant owners supplied water pipes for smoking by their ‘footway dining’ customers.

On 12 December 2011 Council adopted a policy called the Smoking In Public Places (SIPP) Policy, November 2011 (“SIPP November 2011”), banning smoking in outdoor dining areas under its ownership and control. Council staff subsequently prepared another policy called SIPP December 2011 which differed materially and relevantly from SIPP November 2011, including the insertion of a definition of “smoking”. There had never been a resolution by Council to adopt SIPP December 2011. In April 2012 the Council’s “Outdoor Dining Policy” was revised in a way which reflected SIPP December 2011 rather than SIPP November 2011.

Smoking in enclosed public areas is prohibited under the Smoke-free Environment Act 2000. There is no legislation in NSW that directly prohibits smoking in footway restaurants however, in adopting the SIPP November 2011, Parramatta City Council became the 32nd council in NSW to adopt a policy banning smoking in outdoor dining areas under its ownership and control.

In order to lawfully operate a footway restaurant it is necessary, in addition to development consent, to have an approval under the LG Act, s68 Part E and an approval issued under sections 125 and 126 of the Roads Act.

Towards the end of April 2012, the Council by its sub-delegate issued approvals under the LG Act and the Roads Act subject to conditions banning smoking. The smoking ban conditions in the approvals under the Roads Act were in the following terms, and the conditions in the approvals issued under the LG Act were in similar terms:

  1. … The Applicant must comply with the guidelines in the Council’s Outdoor Dining Policy, annexed hereto marked ‘B’.
  2. The Applicant must ensure that no smoking occurs in the Approved Area. The Applicant must not do or permit anything to be done in the Approved Area that encourages smoking. For the purposes of this clause, ‘smoking’ is the activity described in the Smoking in Public Places Policy (December 2011) adopted by Council.

 The Findings

The Court found that the no smoking conditions in the approvals were premised on SIPP December 2011 having been adopted by the Council. As SIPP December 2011 was not in fact adopted by the Council, the conditions were inoperative or alternatively may be characterised as invalid.

The Court also found that the no smoking conditions were invalid because those conditions were beyond the sub-delegate’s powers. The General Manager’s instrument of delegation required the General Manager to exercise his delegated functions in accordance with and subject to “all and every policy adopted by resolution of the Council…”. The General Manager sub-delegated the approval of outdoor dining which “may be exercised in a way that is consistent with the policies and decisions” of the Council. The reference to SIPP December 2011 shows that these limitations were not observed and the no smoking conditions were invalid for that reason.

The Court agreed with a previous decision of Preston CJ (Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 5) [2012] NSWLEC 53) and has confirmed that councils have the power to ban smoking in outdoor dining areas under the control of the council through conditions imposed on a Roads Act or LG Act approval.

In this instance however, the relevant council policy was materially amended after it had been adopted and, consequently, approvals purporting to rely on the amended policy were not granted in accordance with the council officer’s instruments of delegation.

Note: This information is not to be relied upon as legal advice.

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