Posted on June 28, 2012 by
Council’s power to impose a ban on smoking in outdoor dining areas
The Land and Environment Court handed down its decision in the case of Parramatta Business Freedom Association Inc v Parramatta City Council  NSWLEC 139 on 20 June 2012.
The case involved judicial review proceedings that challenged the Council’s ban on smoking in outdoor dining areas located on footways of public roads owned by the Council.
The Court found that the Council does have the power to impose smoking bans in footway restaurants as a condition of approvals granted under the Roads Act 1993 (Roads Act) and the Local Government Act 1993 (LG Act).
The Applicants were an association of owners that were subject to no smoking conditions imposed on approvals granted under the Roads Act and the LG Act.
The Council adopted a Smoking in Public Places Policy in November 2011. In December 2011 a new policy was drafted and included a statement that it had been adopted by the Council, however this was an erroneous statement as a resolution was never passed adopting the December 2011 policy.
The Court concluded that despite the fact that Council had power to impose no smoking conditions generally, the conditions in question were premised on the December 2011 policy having been adopted, and as it had not in fact been adopted (and differed materially from the November 2011 policy), the conditions were inoperative and invalid.
There was an argument regarding whether Council could erect no smoking signs pursaunt to s632 of the LG Act. The Court held that the Council did not erect no smoking signs itself, rather the Council had provided the Applicant’s with a resources pack that included posters that they may put up should they choose to do so. The Court therefore did not determine whether the Council had power to erect the signs.
This case confirms that Council’s have the power to impose conditions that ban smoking upon approvals granted under the Roads Act and the LG Act.
In this case the Council’s reliance on an ineffective policy resulted in the invalidity of the conditions.