A recent decision by the Victorian Civil and Administrative Tribunal (VCAT) has highlighted the need to consider how new changes to smoke free laws, to be introduced on 1 July 2007, will affect existing and proposed licensed premises.

In an interesting decision by the Tribunal in Ryan vs City of Port Phillip, it was decided that a first floor tavern should not proceed as no provision was made for smokers.

In short, the new legislation requires venues to provide smoking areas such as balconies, outdoor areas and the like away from enclosed areas of a licensed premises.

The Tribunal found that the proposed bar was well supported by local planning policy being located within the activity district of Acland Street which encourages a mix of uses including entertainment uses.

The Tribunal is bound to consider the provision of the planning scheme which, amongst other things, states that in arriving at its decision in relation to this licensed premises, it has to ensure that no unreasonable off site amenity impact will be caused to other uses, particularly those such as residential neighbours in this case.

In acting as the umpired, the Tribunal decided on balance that the likelihood of a significant number of people going outside to have a cigarette was high and it was a real possibility that this could cause an unreasonable impact on the amenity of residential neighbours.

There is a whole different argument about the expectations of how you protect people's residential amenity when they are located in an area which is not purely residential, rather a mix of uses such as in this case. Nonetheless. the decision has implications for both existing and proposed licensed premises in any urban setting.

The Tribunal has carefully balanced the issue of 'unreasonable' amenity loss and decided that in this case a venue that does not provide appropriate facilities for the 'management of smokers' could cause unreasonable disruption to the residential amenity outside the venue. Put simply, the planning scheme requires the umpire to make a judgement about this amenity issue, noting:

"While the proposed laws are not yet in effect, I think it is reasonable that they be taken in account in the establishment of a new use of this type" (tavern/bar)

In principle I support the Tribunal's approach. This issue has implications for both the operators of a licensed premises and local Councils dealing with residential complaints arising from patron behaviour.

The Premier told Neil Mitchell on 3AW (03/10/06) that appropriate legislation will be introduced to ensure compliance with the new rules. Presumably that will be through planning or liquor license control, or both. Either way, the obligation to comply is likely to fall with the licensed operator to manage his patrons to that they don't go in and out of his premises for a cigarette. This will be difficult for the licensed operators to enforce. What if a patron walks up the road and looks in a dress shop window or stands near alfresco diners at an adjoining restaurant whilst he's having a cigarette? Maybe local Council enforcement officers will issue on the spot fines? Maybe patrons will have to walk when they are smoking...at this stage, that's not against the law!.

Clearly the smoking bans are calling on a cultural shift. However the focus of the legislation on enforcement of these smoke-free rules on existing and proposed licensed premises must find practical solutions for implementation and enforcement.

Existing and future licensed premises operators will have to make provision for smokers within their existing venue. Alternatively, if they can't do that they might have to extend their venue - most likely that will trigger a planning permit and building approval and a whole different range of issues will need to be considered by Council, or the Tribunal on appeal, before such a permit is issued. For example, the works might cause other impacts on neighbouring properties or the proposed new building might reduce on site parking availability or loading facilities.  There are a range of consequences that are conceivable.

Similarly if balconies or other more creative alternatives are proposed for smokers, then in most cases approval will be required from the local Council or the Tribunal on appeal.

Either way, licensed premises better start formulating their response to the new legislation as the lead time for obtaining necessary approvals could take up to 25 weeks or more before getting over the regulatory hurdles of having to obtain those approvals.

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