01 Oct 2007
Planning Bulletin
Welcome to the first edition of the quarterly DLA Phillips Fox Victorian Planning Bulletin.
In this issue we examine such diverse topics as the new Aboriginal Heritage Act 2006, the future of landfills in Victoria, the new smoking provisions, the 'in conjunction test' for Green Wedge Zones and Rural Conservation Zones, and the expiry of planning permits.
We also take the opportunity to introduce some new members of our Planning, Environment and Local Government team. Finally, if you find this bulletin of interest and know any colleagues or contacts who would like to receive this quarterly publication, please let one of our team know, and we will add them to our distribution list. Happy reading!
This publication includes:
Can landfilling survive in Australia?
This year, the State Government of Victoria announced that it would not proceed with a proposed long-term waste containment facility (LTCF).
Despite spending $14.2 million and more than four years trying to find a suitable site, the Government has decided against trying again. Instead, it will rely on existing landfills for the storage of hazardous waste until 2020. Heavy industries will see a 10-fold increase in fees for dumping toxic waste over the next 18 months. 30 per cent of what was previously classed as toxic waste (including food stuffs and partly treated waste) will no longer be stored at hazardous waste sites, but redirected to existing Melbourne landfills.
At the federal level, the Productivity Commission proposes reforms to the nation’s waste management systems. The Commission’s recommendations include phasing out the use of landfill levies and discontinuing the use of targets for waste collection.
It is yet to be seen how these recommendations will work in light of the Victorian Government’s decision on the LTCF.
What impacts does this have on Victorian Local Government? What legacy issues are involved?
The Federal position
The Productivity Commission identified a number of social and environmental externalities associated with landfill use, currently the main method of waste disposal in Australia. These included leachate discharges, gaseous emissions, loss of visual amenity, foul odours, harbouring disease-carrying pests and, more broadly, illegal dumping and littering.
It noted that properly designed and managed modern landfills have a lower environmental impact than old landfills, particularly where they incorporate gas capture and electricity generation. In relation to concerns associated with the scarcity of suitable space for landfills, the Commission suggested that the use of appropriate planning frameworks and the action of market forces would mostly address these issues. In urban areas, the Commission suggested that rising gate fees will make it financially worthwhile to transport the waste further, which will create opportunities for new landfills and encourage recycling.
The Commission also considered that the ‘waste hierarchy’ approach to waste management policy, under which disposal to landfill is considered to be the least desirable option, was ‘inconsistent with good policy principles’. As a result, the Commission suggested that, rather than introducing waste diversion targets, it would be more appropriate to allow the market to establish the most appropriate balance between disposal and resource recovery. It did not state how this was to be achieved.
Rather than imposing prescriptive licensing requirements on landfill operators to incorporate features from ‘best practice’ guidelines, the Commission considered that it would be more appropriate to base consideration of landfill proposals on how they would ‘reduce the risk of adverse outcomes’.
In relation to pricing, the Commission was critical of landfill levies and suggested that the main purpose of the levies was to discourage waste being sent to landfill and to achieve waste diversion targets. To the extent that regulation and other policies already address externalities, the Commission said that levies duplicate existing costs.
Rather than landfill levies, the Commission favoured the use of regulation to reduce externalities to acceptable levels, better enforcement of these regulations and the use of gate fees to internalise the environmental and external costs of the landfill and provide appropriate price signals to users.
The Commission recognised the difficulties experienced by local governments in relation to waste management issues, particularly in urban areas. It was noted that key issues included tensions over where facilities are to be located, a lack of appropriate expertise and capital backing, and how to address NIMBY-ism. To address this, the Commission suggested that state and territory governments should consider declaring major waste and resource recovery facilities to be projects of state or regional significance and passing responsibility for waste disposal to appropriately-constituted regional waste authorities. In part, this is what Victoria tried, and failed to do.
In a recent response to the Report from the Federal Government:
- The Federal Government acknowledges that whilst the waste hierarchy should not be the sole guide to policy making, it is a useful communication tool when used to provide information to the community about alternative options for waste management.
- In contrast to the Commission's recommendations, the Federal Government considers that it is appropriate for governments to impose waste diversion targets as part of waste management policy if rigorous analysis indicates that their pursuit will deliver net benefits to the community. The Federal Government also noted that aspirational, voluntary waste diversion targets that are set in a sustainability context and based on sound science can also be used as communication tools to draw community attention to desirable waste outcomes.
- The Federal Government generally supported the recommendation that the provision of waste-exchange services should be left to private markets. However it noted that this will depend on local circumstances and if a compelling case can be made that waste-exchange services can be more efficiently and effectively delivered by governments, then that mode of delivery should be considered.
The Victorian situation
The Victorian Minister for Major Projects established the Hazardous Waste Siting Advisory Committee (HWSAC) in 1999 to advise on all aspects of the siting process for new facilities for recycling, treating and storing hazardous waste to be developed over the next few years. The Hazardous Waste Consultative Committee Final Report was released in April 2000. The Victorian Government followed the recommendations of the report in establishing a number of siting and buffer criteria for new hazardous waste facilities, including long-term containment facilities (LTCF). In response to an identified need for a new LTCF, the process for identifying and assessing potential LTCF sites began in December 2002 and finished in May 2004.
There was found to be no government owned land remained that met all siting criteria. Three study areas were identified as being the most likely to satisfy the siting criteria: Baddaginnine (in north-eastern Victoria), Pittong (in western Victoria) and Tiega (in north-western Victoria).
When preliminary Environmental Effects Statement (EES) studies commenced, a number of problems was identified with each of the three study areas. Technical and environmental concerns were raised in relation to the hydrogeology and hydrology of the Pittong and Baddaginnie sites. Even though the Tiega site was considered technically suitable, the government responded to views expressed by the community that the project should instead be relocated to a suitable Government-owned land site. Following this decision, a relatively small parcel of government-owned land was
identified at Nowingi.
Nowingi long term containment facility: environmental effects inquiry
A detailed EES was prepared following the selection of the Nowingi site.
The Nowingi LTCF proposal consisted of a facility to contain up to 250,000 tonnes of Category B prescribed waste in 20 engineered in-ground bunkers.
The Nowingi EES and the Amendment C41 to the Mildura Planning Scheme (Amendment) required to implement the project were highly controversial in the community. A planning panel (Panel) was appointed to hear public submissions in relation to the proposal and to consider the EES and the Amendment in detail.
Following an extensive hearing process, the Panel released its report in December 2006. It concluded that the Nowingi LTCF project should not be approved due to associated environmental and planning issues. In response to the Panel report, the Victorian Government announced in January 2007 that it would not proceed with the project. A consideration of the details of the Nowingi LTCF proposal and the praise and criticism that it received provides an insight into the current mind-set associated with hazardous waste management in Victoria and Australia today.
Key issues and considerations
The Panel expressed a number of significant planning concerns in relation to the location of the Nowingi LTCF, including the presence of remnant native vegetation of high conservation value and proximity to National Parks.
Another key factor was that the Nowingi LTCF was proposed to be located 500km from most waste producers, which was considered to require significant transport and associated transport risk and greenhouse emissions. These transport-related concerns focused on the potential risks associated with transporting the material from Melbourne and the need to upgrade both road and rail infrastructure.
The Panel supported the overall design approach of the Nowingi LTCF, and concluded that effective ongoing monitoring and remediation during operation and after closure was feasible. It was also satisfied that in relation to leachate, a source of major concern within the community, there was negligible risk of it escaping from the bunkers of the LCTF to contaminate groundwater.
The major concern of the Panel was the size of the proposal in relation to the current quantities of Category B waste produced, and that unless there was a sharp reduction in waste output it was likely that the proposed Nowingi LTCF would fill quickly and therefore not provide a sustained solution to the problem of managing Victoria’s Category B waste output.
The Panel concluded that the Nowingi LTCF would have minor adverse economic, social and environmental effects and no adverse effects on human health, and on this basis the project was held to be acceptable in terms of its EES evaluation.
However, the Panel also concluded that the proposed planning scheme amendment had substantial inconsistencies with the state’s planning objectives and would not provide a reasonable planning outcome. Key concerns included that the
Nowingi LTCF:
- Could fill too soon to provide a sustainable solution for Victoria's Category B wastes;
- Cannot be reasonably or readily expanded because of its surrounds; and
- Is too distant from waste producers.
On the basis of these planning and environment considerations, the Panel’s overall finding was that the Nowingi LTCF project should not be approved.
Government Response
Following the Panel’s recommendations, on 9 January 2007 the State Government of Victoria announced that it would not proceed with the proposed Nowingi LTCF. The government also announced that rather than attempting again to find another suitable site for an LTCF elsewhere in Victoria, it would instead rely on the existing landfills at Lyndhurst and Tullamarine for the management and disposal of industrial waste until 2020. However, the government also announced that no prescribed industrial waste will be allowed into the Tullamarine landfill from October 2009, and the site must cease to operate as a landfill by 1 June 2010. The only hazardous site remaining open following the closure of the Tullamarine landfill will be the Lyndhurst site in south-east Melbourne.
The Victorian Government has also implemented Our Environment, Our Future - Sustainability Action Statement (July 2006) (Action Statement) which raised landfill levies for hazardous waste from $30 per tonne to $130 per tonne on 1 July 2007 and proposes to further increase the levies to $250 per tonne on 1 July 2008. The additional levies are also intended to raise about $30 million over the next four years which will be used to fund investment in new technologies for reuse, recycling, reprocessing and recovery of industrial waste. Local Government might ponder on whether some of that money might usefully be used to ensure post closure plans are adhered to.
Conclusion
There is currently a fractured state of policy in relation to waste management, and in particular the use of landfills and the storage of hazardous waste, in Australia.
Particularly in Victoria, there is no clear policy direction. The Victorian Government is leaning firmly towards phasing out landfill usage through the use of increased landfill levies and the setting of waste diversion targets. In contrast, the Commission has strongly recommend that the Federal Government encourage the use of landfills and remove policy instruments that seek to indirectly encourage, among other things, resource recovery.
It remains to be seen what the result this policy will have when it is actually applied in practice, particularly whether the Victorian Government’s policies will actually result in sufficient waste reductions such that new landfill is not required.
Until then Local Government continues to carry the landfill load and legacy issues.
For further information please contact:
Louise Hicks, Partner
Tel +61 3 9274 5459
louise.hicks@dlaphillipsfox.com
Process for extending permits confirmed but uncertainty remains following Benadetti decision
The recent VCAT decision of Burleigh v Frankston City Council confirmed a number of principles that have arisen regarding the extension of permits under Section 69(1) of the Planning and Environment Act 1987 (the Act):
- A permit holder must apply to a Council for an extension of a permit. It cannot apply directly to VCAT.
- Although Section 69(1) of the Act provides that an application must be made before the permit expires, or within three months afterwards, the Tribunal has a discretion under Clause 62 of Schedule 1 to disregard the failure to comply with the three month timeline.
However, in Burleigh VCAT went further and also:
- Determined that even if the three month timeline has expired, a Council must nevertheless consider a request for extension of time. It should not refuse to consider the request.
- Exercised the various discretions of VCAT to amend the date of the application for review to a date subsequent to the application for an extension of time, and found that as a matter of fact correspondence from the Council constituted a refusal to extend time. This enabled the Tribunal to consider the application, and grant an extension to the permit.
As a result of this decision, there is considerable scope for permit holders to apply to extend their permits, notwithstanding that the three month time period has lapsed.
However, the question of whether a permit has actually expired and the ongoing nature of permit conditions remains problematic following the Supreme Court decision in Benadetti v Moonee Valley City Council [2005] VSC 434 and the VCAT decision in Melbourne Grammar School v City of Melbourne 6APR 327. Following these two decisions it appears that although a permit may have technically expired:
- Conditions of an ongoing nature can be enforceable;
- A permit can be treated as merely lapsing and can be resurrected on a determination by the Tribunal.
In Benadetti, the Supreme Court determined that a condition requiring the Council to consent to any changes to buildings and works from those shown in the endorsed plans was a condition of an ongoing nature if the landowner sought to have the benefit of the permit. As a result, the condition was enforceable.
The Supreme Court also upheld a condition requiring the Responsible Authority to provide consent to further buildings and works, notwithstanding that the works in question did not require a planning permit under the Planning Scheme.
Councils are grappling with the practical implications of the Benadetti decision. Taken to an extreme, where there is a permit which authorises a current use or development with a ‘Benadetti’ condition, Council would have to consent to any further works or development.
If you do seek advice regarding the extension of permits, or the implications of the Benadetti decision, then please contact a member of our team.
For further information please contact:
Andrew Walker, Senior Associate
Tel +61 3 9274 5043
andrew.walker@dlaphillipsfox.com
Amendment VC45
Amendment VC45 (the Amendment) was gazetted on Monday, 17 September 2007, and is now in force. The Amendment updates and clarifies the Victorian Planning Provisions (VPPs) in relation to various issues identified by stakeholders and new strategy and legislative documents. These amendments include:
- Changes to the definitions and referral provisions for Advertising Signage.
- Expanded definition of ‘restricted retail premises’.
- Additions to the discretionary uses and purposes of the Rural Zones.
- Amendments reflecting the introduction of the Aboriginal Heritage Act 2006.
- Incorporation of two new documents into the Planning Scheme.
- Updated references to the Development Contribution Guidelines.
- Other minor amendments and corrections.
The Amendment affects all planning schemes in Victoria (except the Port of Melbourne Planning Scheme).
Advertising signage
The Amendment adds a new outdoor advertising term into clause 73: ‘electronic billboard sign’. An electronic billboard sign is a ‘sign that can be updated electronically’ and ‘includes screens running television footage, large screen video displays and the like’. This type of sign must now be distinguished from internally animated, floodlit, internally illuminated and other similar signs.
The Amendment provides that an application to display an electronic billboard sign within 60 metres of a freeway or arterial road must be referred to the Roads Corporation for consideration.
The Amendment also introduces new decision guidelines for advertising signage applications. A responsible authority must now consider ‘the effect of the sign on road safety’ and the Amendment has inserted into the decision guidelines a series of 10 situations in which a sign will be regarded as a road ‘safety hazard’. These decision guidelines apply to any sign for which a permit is required, whereas previously, road safety implications were only relevant to permit applications for signs that were animated, floodlit, internally illuminated, panel, reflective or sky sign to be displayed within the vicinity of a major road.
The Amendment also provides that major promotion signs, displayed in accordance with a permit granted between 19 September 1993 and 18 September 1997, may continue to be displayed until 18 September 2008 (clause 52.05-5). The purpose of this year-long extension of the sunset clause is to allow for the completion of the Advertising Sign Review, due in December 2007.
Expanded definition of 'restricted retail premises'
As an interim measure, in anticipation of completion of the Retail Policy Review in May 2008, and in response to the VCAT decision in Woolworths Limited v Warrnambool CC [2005] VCAT 2211 (22 October 2005) the definition of the land use term ‘restricted retail premises’ has been expanded.
The definition in clause 74 now makes specific reference to a broader range of goods of the kind that have so far been permitted to be offered for sale or hire on such premises. For example, ‘furnishings’ has been replaced with ‘bedding, furnishings, fabric and manchester’, ‘household electrical goods and home entertainment goods’ have been added to the ‘household appliances’ category, and ‘office supplies’ has been expanded to include office ‘equipment’.
Additions to rural zones rules
The Farming Zone has been amended to add ‘Veterinary centre’ to the discretionary or permit required uses (clause 35.07-1). As a result, responsible authorities in rural areas will now be required to consider a permit application for, for example, the medical treatment of agricultural livestock in rural areas.
A new local purpose has been added to the Rural Activity Zone, namely, ‘to provide for the use and development of land for the specific purposes identified in a schedule to this zone’ (clause 35.08). This will enable councils to include a statement in a schedule to the zone that identifies what they want to achieve in a particular area or areas within the zone.
Aboriginal Heritage Act 2006 amendments
The Amendment makes consequential amendments to certain clauses of the State Planning Policy Framework, Green Wedge Zones, Heritage Overlay and the Particular Provisions to give effect to the commencement of the new Aboriginal Heritage Act 2006, which replaces the Archaeological and Aboriginal Heritage Preservation Act 1972 and Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
Planning and responsible authorities, as well as applicants, must now take the requirements of the new Act into account when considering planning scheme amendments and permit applications.
Code of Practice for Timber Production 2007
The Economic Development provisions of the State Planning Policy Framework have been amended, insofar as they relate to Forestry and Timber Production, to take into account the new Code of Practice for Timber Production 2007 (clause 17.07). Clause 52.18, which relates to Timber Production, has been similarly amended.
The new Code has also replaced the superseded Code of Forest Practices for Timber Production of November 1996 as an incorporated document under the planning scheme.
Updates reference to the Development Contributions Guidelines
The Amendment updates the reference to the Development Contribution Guidelines, in the Infrastructure provisions of the State Planning Policy Framework, to reflect amendment of the Guidelines (clause 18.12-2). The Guidelines were amended in March 2007 to enable councils to recover the costs of structure planning for new urban development in greenfields locations.
For further information please contact:
Kim Piskuric, Senior Associate
Tel +61 3 9274 5351
kim.piskuric@dlaphillipsfox.com
Hannah Brown, Articled Clerk
Tel +61 3 9274 5047
hannah.brown@dlaphillipsfox.com
Planning ahead to preserve the past: Some points about Cultural Heritage Management Plans under the Aboriginal Heritage Act 2006
Background
While it may be going too far to claim that there has been a cultural revolution, the commencement of the operation of the Aboriginal Heritage Act 2006 (Vic) (New Act) signals the beginning of a new era in the management of indigenous heritage in Victoria.
The New Act came into force on 28 May 2007 (Commencement Day), repealing the Archaeological and Aboriginal Relics Preservation Act (1972) (Vic) and replacing the Aboriginal and Torres Strait Islander Protection Act (1984) (Cth). Although the New Act does not substantially alter the types of places and objects that are protected, the legislation does significantly change the approach to management and protection of cultural heritage.
Cultural Heritage Management Plans
One of the key changes is the development of the Cultural Heritage Management Plan (CHMP) as a mechanism for the integrated management of indigenous heritage in the context of development activity.
A CHMP is a written report detailing assessment of an activity area and setting out measures for managing the impacts of the activity proposed in that area, before during and after the activity occurs. It will be prepared by a cultural heritage advisor on behalf of the proponent of a project (the Sponsor) and will be assessed by the relevant Registered Aboriginal Parties (RAP) or, if there is no RAP appointed, by the Secretary of the Department.
The New Act aims to ensure that indigenous heritage issues are assessed and addressed at the beginning of the planning and development process and that, where appropriate, managers of indigenous heritage will have input into the design of the project so as to achieve improved heritage management outcomes. To this end, where a CHMP is required, the New Act suspends the processing and approval of other ‘statutory authorisations’ until a plan has been prepared.
The triggers for preparation of a CHMP are:
- Where required by the Regulations;
- Where the Minister directs; and
- Where an Environment Effects Statement (EES) is required.
The Regulations require a CHMP for an activity if all or part of the activity area is an ‘area of cultural heritage sensitivity’ and all or part of the activity is a ‘high impact activity.’ Both of these terms are defined in the Regulations, which also set out certain ‘exempt activities‘. Determining whether or not a plan is required may be as simple as identifying that an exemption applies, or may be as complicated as determining whether or not the site contains ‘prior waterways’ or ‘lunettes’ which have been subject to ‘significant ground disturbance’ and whether the activity will be a ‘high impact activity.’
Given the multiple steps and investigations that will be required in many cases, it remains to be seen whether the legislation has achieved another of its objectives, which is to provide increased certainty for developers and land managers as to when a CHMP will be required. This is particularly so in the case of projects already on foot at the time the New Act came into force.
Exemptions during transition
For projects already commenced, the New Act and Regulations set out transitional provisions which identify four sets of circumstances in which a CHMP will not be required, being:
- If a statutory authorisation for an activity is in force on the Commencement Day;
- If an application for a statutory authorisation for an activity has been submitted to a decision maker before the Commencement Day;
- If all of the site information collected in an archaeological survey carried out for an activity had been provided to the Secretary before the Commencement Day; and
- If consents under the previous Aboriginal heritage legislation were in force in relation to the activity before the Commencement Day.
The key point to note in relation to the operation of these transitional provisions is that they apply only to the requirement to prepare a CHMP under the Regulations. That is, they do not apply to the other circumstances in which a CHMP will be required (i.e. where an EES is required or at the Minister’s direction). In relation to projects that require an EES, there is uncertainty as to whether the obligation to prepare a CHMP will apply retrospectively where the EES has been approved, especially where works have commenced.
In relying upon the fourth exemption, there is also some ambiguity around the scope of the protection, as consents will have been obtained for specific, identified sites and not necessarily the activity area as a whole (this is particularly the case with linear infrastructure projects). The Sponsor may expose themselves to the risk of delay (arising from the subsequent need to prepare a CHMP), or alternatively of prosecution under the offence provisions of the New Act, if new sites not covered by the existing consents are disturbed in the course of construction works.
The role of the RAP
Once the Sponsor has given notice of its intention to prepare a CHMP, the RAP must respond indicating whether or not it intends to evaluate the plan. The Sponsor must make a reasonable effort to consult with the RAP during preparation of a CHMP, and the RAP must use reasonable efforts to cooperate. Once the plan is prepared, the Sponsor must apply to the RAP(s) for approval of the plan.
The RAP has 30 days in which to decide to decide whether the plan complies with the requirements of the Act and to approve or refuse the plan. The New Act provides that the RAP must refuse to approve a CHMP if it has not been prepared in accordance with the relevant standards. The RAP may otherwise only refuse to approve a CHMP if it is not satisfied that the CHMP adequately addresses the specified matters (basically, the avoidance and minimisation of harm, specific management measures, contingency plans and custody arrangements).
Disputes
The New Act provides a right for review by the Victorian Civil and Administrative Tribunal (VCAT) in certain circumstances, including review of a refusal to approve a CHMP. The scope of the matters that VCAT can consider in such a proceeding is relatively narrow. In making its decision, VCAT is required to consider the same matters as the RAP, and must be satisfied that the CHMP makes sufficient provision to avoid and minimise harm to Aboriginal cultural heritage. By the time the disputes get to the Tribunal, it is likely that VCAT will be required to have regard to and apply the Victorian Charter of Human Rights and Responsibilities to these disputes, the full implications of which are not clear at this stage.
The newly created Aboriginal Heritage Council will be responsible for mediating between RAPs that disagree on approval of a CHMP.
What if the activity or area changes?
Once a CHMP has been approved, if the activity or activity area changes, it may be necessary to prepare a whole new CHMP.
The New Act makes no explicit provision for amendment of an approved CHMP, other than by way of an exemption from the requirement to prepare a plan for ‘Amendments to a Statutory Authorisation.’ This exemption will only apply where the area concerned has already been assessed and the new buildings and works proposed are ‘not inconsistent with’ the approved CHMP. In other circumstances, the Sponsor will need to repeat the whole process of notification, preparation, assessment, and approval.
Therefore, it would be wise to have the project design as resolved as possible, and to ensure that all contract documents allow for the possibility of delay if amendment is required. With possible penalties of over one million dollars, contravention of the New Act would be an expensive mistake.
Where are things now?
As at the date of writing, one RAP has been appointed (the Gunditj Mirring Traditional Owners Aboriginal Corporation, in the south west of Victoria). Consequently, AAV is dealing with the assessment of a large number of plans currently being prepared and submitted for approval. Until more RAPs are appointed, the timeframes for assessing and approving CHMPs are likely to exceed the statutory requirements.
If you are the proponent of a project currently underway, you should establish whether or not a CHMP will be required for your activity. This will be particularly relevant where all approvals have not yet been obtained, or where indigenous cultural heritage investigations or assessments might not have been carried out or may not have identified all heritage sites within the activity area. While the process of determining this requirement may seem an annoying task to undertake midway through a project, discovering a new heritage site for which you do not have consent to disturb, or being fined for harming or destroying such a site, will far outweigh any such inconvenience.
If you need assistance in determining whether or not your project or activity is exempt from the requirement to prepare a CHMP, or on any other matter relating to the New Act, we’d be happy to help.
For further information please contact:
Megan Utter, Senior Associate
Tel +61 3 9274 5371
megan.utter@dlaphillipsfox.com
The new tobacco laws: will hotels run out of puff?
As of 1 July 2007, new tobacco laws were introduced which prohibit smoking in licensed premises. The introduction of Section 23 of Tobacco (Amendment) Act 2005 repealed Section of 5A(2)(b) of the Tobacco Act 1987 which previously exempted licensed premises from the non smoking laws.
The new tobacco laws have implications for operators of licensed premises seeking to:
- Apply for planning permission to open a new or alter an existing licensed venue; and/or
- Apply for or amend a liquor licence.
In both cases, a licensed venue will be required to provide areas for smoking substantially open in nature. However, there is currently no clear guidance as to when it is acceptable to use a footpath as the smoking area.
This will cause headaches particularly for inner city pubs where space is at a premium.
Can footpaths outside licensed venues be used for smoking areas?
The introduction of the new tobacco laws has created some uncertainty in terms of whether footpaths outside licensed venues can be used as smoking areas. This does not apply to already licensed venues which can use footpaths as smoking areas: Ryan v Port Phillip City Council [2006] VCAT 923.
In Ryan it was held that:
‘In the case of smaller scaled venues, the footpath or other area of the public realm may be used as an outdoor area to smoke subject to an appropriate management plan’.
So what does ‘small scale’ mean? In Ryan the Tribunal did not attempt to define ‘small scale’. The Tribunal determined that this would depend on the circumstances of the case and what is meant by ‘small scale’ would become apparent with experience over time.
Ryan was applied in Maisano v Port Phillip City Council [2007] VCAT 62.
In Maisano, the Tribunal did not accept that 300 patrons in a site located in the middle of a very busy St Kilda Junction (on corner of Punt Road and Nelson Street) was small scale. In reaching this conclusion, the Tribunal considered:
- Amenity disruptions to nearby residents.
- The character of the nearby area.
- The hours of operation.
- The narrow footpath area and large volume of passing traffic creating a real risk of pedestrian activity spilling from the footpath onto the road.
These considerations are focused on amenity impacts and do not indicate what a small scale venue comprises (i.e. patron numbers, size of venue, etc).
Accordingly, there is currently no guidance or criteria to assess whether a venue is considered small scale and therefore whether the public realm can be utilised to provide the smoking area.
We believe that, rather than focus on whether a venue is small scale or not, the real question is the amenity impacts of a proposal, and if an on-site smoking area is not provided, the amenity impact of having smokers use the footpath.
The Minister for Health issued a statement of government policy on 27 June 2007.
Whilst it states there is no obligation to provide outdoor smoking areas, it offers no real assistance as to when footpaths outside licensed venues can be used as smoking areas. As a result, we believe it will remain to Council and VCAT to assess the matter on a case by case basis.
What does this mean?
At the moment, and until further guidance is given by the Tribunal there remains uncertainty around the issue of when footpaths can be used as smoking areas.
Therefore, venue operators are potentially constrained in their ability to develop their premises or amend their liquor license, and Councils are left in a state of uncertainty as to how to apply the new smoking laws when considering planning permit applications.
Venue operators should seek legal advice at an early stage in the planning process, to ensure every possibility that any planning application and liquor licensing application will succeed.
For further information please contact:
David Passarella, Solicitor
Tel +61 3 9274 5042
david.passarella@dlaphillipsfox.com
‘The more things change, the more they stay the same’
The ‘in conjunction with’ test
A number of uses are prohibited in Green Wedge and Rural Conservation Zones, unless the use is undertaken ‘in conjunction with’ another use. In both cases, the range of prohibited uses is wide. Therefore, the meaning of the words ‘in conjunction with’ are crucial in determining a landowner’s ability to develop Green Wedge and Rural Conservation Zone land.
Amendment VC43, introduced into Planning Schemes at clause 64.02 on 31 October 2006, sought to vary the test for establishing whether land is used ‘in conjunction with’ another use of land. Clause 64.02 was drafted in response to a series of cases concerning proposals in the Green Wedge Zone to use and develop land for commercial accommodation, conference, tourist or education purposes.
However, the introduction of the Green Wedge and Rural Conservation Zones (and Amendment VC43) extinguish any existing use rights. The extent of any existing use rights is crucial in determining the development potential of land.
The old test
Prior to the introduction of Clause 64.02, a functional nexus was required between the two uses to establish existing use rights ‘in conjunction with’ each other (Dandenong Ranges Steiner School v Cardinia SC [2005] VCAT 1152). In Dandenong Ranges Steiner School v Cardinia SC the issue to be determined was whether the proposal could be described as an education centre used in conjunction with agriculture or natural systems. It was held that:
‘unless a functional nexus between education, agriculture, and/or natural systems can be established, the use is prohibited and no planning permit can issue.’
The new test
The new clause 64.02, introduces two ‘limbs’ which require that:
- There must be an essential association between the two uses; and
- The use must have a genuine, close and continuing functional relationship in its operation with the other use.
These new provisions were considered in two recent cases, both before non-legal members.
In Mornington Wine Company Pty Ltd v Mornington Peninsula SC [2006] VCAT 2651 the Tribunal granted a permit for use and development of land for a holiday resort incorporating a winery, a function centre and a restaurant, residential hotel, a caravan and camping park and golf driving range. The permitted uses were proposed to be ‘in conjunction with’ use of the land as a winery. The Tribunal considered the meaning of both limbs of clause 64.02.
The Tribunal held that the requirement for an essential association between uses cannot be interpreted literally:
‘For example, in an operational sense there is no essential or intrinsic association between a vineyard on the one hand and a restaurant on the other hand, and yet these are uses that clearly the planning scheme anticipated can and should occur in association.’
The Tribunal also found that the ‘essential association’ between what were termed secondary uses and primary uses were aesthetic, economic and symbiotic. After discussing the second ‘limb’ of clause 64.02, the Tribunal essentially maintained the old ‘functional nexus’ test.
However, in Neve & Ors v Macedon Rangers SC [2007] VCAT 277 the Tribunal suggested that the test should be applied purposively rather than being too literal.
When considering the ‘essential association’ the Tribunal found that it requires a nexus with the permitted use that includes:
- A required or necessary link(s) between bona fide activities;
- A demonstrable, rather than speculative, link(s) between uses;
- A link(s) of substance not of minor, token or tenuous association; and
- An association with the permitted use from inception.
Furthermore, the Tribunal found that ‘essential association’ between two uses:
- Requires more than just a physical co-existence or co-location;
- Does not confine the nature of the link(s) which may be, for example, practical, functional, aesthetic and/or economic;
- Does not demand a distinction between primary and ancillary activities although the relative scale of uses may be relevant;
- Does not go so far as to require co-dependency (although the Tribunal believed that would demonstrate an essential association).
Both cases were discussed in Jinalec Park PL v Mornington Peninsula SC [2007] VCAT 1238 where the Tribunal disagreed with the Neve interpretation that associations and relationships on the site must relate to activities on the subject land.
Deputy President Helen Gibson stated:
‘I consider the association should be between the uses on the land. They can be broad associations and may be aesthetic, practical, environmental or the like. Any association that provides a mutual benefit is sufficient, so long as the second limb of clause 64.02 is also satisfied in terms that the benefit is genuine and continuing.’
Conclusion
Despite an attempt to narrow the ‘in conjunction with’ test by amending clause 62.04, clause 62.04 has been broadly interpreted along the same lines as the old ‘functional nexus’ test. Under the old test, a functional nexus between the two uses had to be established, whereas in Jinalec Park, the Tribunal determined a broad association between the two uses will suffice, so long as the association provides a mutual benefit that is ‘genuine and continuing.’ Although Jinalec appears to circumvent the intent of Amendment VC43, Jinalec is a decision of a legal member, and is therefore likely to be followed in future cases that consider the ‘in conjunction with’ test.
For further information please contact:
Alice Skipper, Solicitor
Tel +61 3 9274 5073
alice.skipper@dlaphillipsfox.com