Parramatta Business Freedom Association Inc v. Parramatta City Council

This was an application for judicial review of Parramatta City Council's ban on smoking in outdoor dining areas located on the footways of public roads owned by the Council (footway restaurants). The application was brought by a business group on behalf of a group of local restaurants. (Note: smoking in enclosed public spaces is prohibited under the Smoke-free Environment Act 2000 - the ban does not apply to footway restaurants).

The Court found that the Council had power to impose smoking bans in footway restaurants as conditions of approval under the Roads Act and the Local Government Act. However, the Court found that the Council had exercised its power invalidly in this case.

Parramatta Business Freedom Association Inc v Parramatta City Council [2012] NSWLEC

  • Australia
  • Jun 20, 2012
  • Land and Environment Court
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Parties

Plaintiff Parramatta Business Freedom Association Inc

Defendant Parramatta City Council

Legislation Cited

Environmental Planning and Assessment Act

Local Government Act 1993

Roads Act 1993

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"The 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. In 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."