Planning update: smoking ban fails

Planning & Environment eBulletin - 31 July 2012

Summary

The NSW Land and Environment Court (the Court) has recently made a decision that highlights how important it is for local councils and other consent authorities to follow procedural provisions under the Local Government Act 1993 and the Roads Act 1993 in relation to imposing conditions on approvals. 

In Parramatta Business Freedom Association Inc v Parramatta City Council1 , the Court found that the no smoking conditions imposed by the Council on footway restaurants were invalid because they were based on a Council policy that had not been properly adopted.

 

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Background

 

  • Smoking in enclosed public spaces is prohibited under the Smoke-free Environment Act 2000. There is no legislation in NSW that directly prohibits smoking in footway restaurants. However in December 2011, the Parramatta City Council (Council) adopted a policy banning smoking in outdoor dining areas under its ownership or control (among other things). 
  • The policy adopted was "Smoking in Public Places Policy November 2011" (Smoking Policy November 2011). 
  • Council staff then prepared "Smoking in Public Places Policy December 2011" (Smoking Policy December 2011) which differed materially from the Smoking Policy November 2011 - however, there was no resolution by the Council adopting it. 
  • In April 2012, Council granted approvals to certain restaurant owners in relation to the development of footway restaurants. The approvals were granted under the Local Government Act 1993 and the Roads Act 1993.
  • Conditions were attached to the approvals requiring the restaurant owners to implement a ban on smoking in outdoor dining areas. Specific reference was made to the Smoking Policy December 2011.

 

The issues

The restaurant owners argued that the Council did not have the power to impose the no smoking conditions under the Local Government Act or the Roads Act. 

They also argued that, if the Council did have the power to impose the smoking ban, it exercised the power invalidly because the no smoking conditions were based on a Council policy that had not been adopted.

 

Council's power to impose the smoking ban

The Court held that the Council did have the power to impose the smoking ban:

 

  • under the Local Government Act: on the basis that the no smoking conditions related to the Council's power to grant the approvals and were relevant public interest considerations that concerned the "protection of public health, safety and convenience"; and
  • under the Roads Act: on the basis that the no smoking conditions fell within the Roads Act's broad grant of power to Council "to regulate the carrying out of various activities on public roads". 

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Adoption of policy

Despite finding that the Council legally had the power to impose no smoking conditions, the Court held that it could not impose the conditions on the restaurant owners in this instance. 

This was because the no smoking conditions were based on the Smoking Policy December 2011 which had not been adopted by the Council, effectively making the conditions invalid. 

The Council sub-delegate's function was to impose conditions that were "consistent with the policies and decisions of the Council". However, the Smoking Policy December 2011 was not such a policy because while it had been prepared by Council staff, it had not been adopted by the Council through a resolution. It was also significantly different in content and wording to the applicable Smoking Policy November 2011 which had been adopted. 

 

What this decision means for policy enforcement in approvals

Local councils and other consent authorities should take a rigorous approach to adopting policies and granting conditions of approval consistent with their policies. Approvals are unlikely to be successfully challenged if due process has been strictly observed. 

 

Authors

Ying Chen | Graduate
Breellen Warry | Senior Associate, Property, Projects & Infrastructure

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1 [2012] NSWLEC 139

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