Ryan v. Port Phillip CC

This case related to an application for a permit to operate licensed premises in circumstances where new tobacco laws had just come into effect (Tobacco (Amendment) Act 2006 (Vic)). The new tobacco laws prohibited smoking in enclosed licensed premises; however, smoking in outdoor areas such as balconies, courtyards, etc was still permitted. The concern was that by forcing smokers to congregate in outdoor areas to smoke, this would cause adverse off-site environmental amenity impacts through noise, unruly behaviour, odour and butt litter. The issue was whether the operators of the licensed premises should be responsible for these amenity impacts and, if so, whether they should be required to provide an outdoor smoking area for patrons.

The Tribunal accepted that a proportion of people attending licensed premises will want to smoke notwithstanding that the internal areas are smoke-free. It further noted that although smoke-free laws had existed for some time for workplaces and restaurants and there had not been significant amenity impacts, the situation was likely to be different for licensed premises.

The Tribunal found that, as a general principle, adverse effects should be dealt with on-site and ameliorated. One of the costs of the new tobacco laws was that licensed premises would need to make provision for patrons to smoke outdoors in such a way that noise did not interfere with nearby residents.

The Tribunal considered and rejected an argument that a requirement to provide an on-site smoking area might undermine smoke-free laws, observing that the new laws did not ban smoking per se; rather, they banned smoking within enclosed areas because of the risks to health associated with people being in a smokey atmosphere.

Ryan v Port Philiip CC [2006] VCAT 1923

  • Australia
  • Sep 19, 2006
  • Victorian Civil and Administrative Tribunal
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Parties

Plaintiff Ann Ryan

Defendant Port Phillip City Council

Legislation Cited

Planning and Environment Act 1987 (Vic)

Tobacco (Amendment) Act 2006 (Vic)

Related Documents

Type of Litigation

None

Tobacco Control Topics

Substantive Issues

None

Type of Tobacco Product

None

"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. 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."