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12 Responses

1. Campbell says at May 11th, 2007 at 10:28 pm

   Good overview Chloe – this issue is massive at the moment and will impact upon practically everyone in Victoria very shortly. Focusing primarily on your question ‘Should planning permit applications for smoking areas be assessed purely as a use and/or building and works applications pursuant to the planning scheme?’ I offer the following discussion;

   As a local government planner, Council’s are seeing more and more applications and amendments to previous permits come in over the counter to tackle the new tobacco reforms. In my experience, these applications are predominantly for buildings and works and not a ‘use’ application.

   From a planning perspective I think the best way to assess these applications, regardless of whether the host building is existing or proposed, is under building as works application within the scheme (or alterations and additions). Establishments are going to have to address the tobacco issues under the new controls and as stated within The Ryan case, if these cannot be address then a refusal should be issued. However, referral authority and relevant permit conditions can control this matter without having to add tobacco areas as requiring a change of use / ancillary use within the scheme.

   Realistically, this is a health issue which we are responding to through reasonable planning controls – a very important matter, which regardless of whether it is considered under the scheme as a use or buildings and works application should be advertised, referred to the Health Department and any other party, and decided upon under the controls as stipulated within Chloe’s discussion.

   This is a fantastic step forward to eliminate the dense smoke that can be present in many establishments in Victoria, but to be fair, we cannot socially exclude those who choose to smoke, we just need to plan accordingly to ensure we are providing safe environments for social interaction and within the workplace – and I definitely envisage these reforms accomplishing this.

   Like I said, we can’t discriminate against those who choose to smoke, but we can eliminate their habit from our personal environments! And hopefully, overtime we might see a decrease in the number of smokers within Victoria, if not Australia.

   Ireland provides and international example of ‘making smoking history’, ‘as the first country to implement a comprehensive smoking ban in indoor workplaces, including restaurants and bars. Defying dire predictions, Ireland’s policy has proved to be both popular and enforceable, with ready compliance, no decline in business, and improved health outcomes for hospitality workers. Overwhelming public support for the ban has come from smokers and nonsmokers alike, dispelling the belief that restaurants and bars should represent bastions of smoking and socialization. For a country traditionally known for its smoke-filled pubs, the new societal standard represents a breathtaking (or breath-enhancing) revolution (New England Journal of Medicine)’.

   Hopefully Australia can follow suit.

   Reference:
   (Worth a look, good article regarding Ireland’s progress on ‘making smoking history’)

   http://content.nejm.org/cgi/content/full/356/15/1496

2. Aaron Hewett says at May 11th, 2007 at 10:38 pm

   This is another example where the State Government hasn’t fully comprehended the impact of a new set of laws on the planning system and hasn’t responded to the Ryan v Port Phillip decision with appropriate guidance to Responsible Authorities.

   The approach to planning applications will be ad hoc, and numerous interpretations will be taken from a decision that was decided solely on its merits (but with obvious, broader implications).

   Perhaps someone working at DSE can explain how an entire government department can be asleep at the wheel…

3. Campbell says at May 11th, 2007 at 11:14 pm

   Aaron Hewett how do you consider the department is ‘asleep at the wheel’ when we are one of a handful of countries that are taking smoking reforms seriously and actually finding a place for it within Australian policy? The majority of all policy implementation no doubt encounters certain probationary periods and has to jump a few hurdles, but isn’t that part in parcel with getting new policy off the ground?

   Don’t you consider the overall aims of this policy to be remarkably positive considering the seriousness of the health statistics attached to this issue? Professionals affected by this policy, are no different to the everyday person who will be affected by this policy, and will have to adjust to its regulations accordingly, so as to provide for safer and healthier environments.

   The overall ambitions and targets of the smoking reform policies far outweigh the pettiness of policy fault finding.

4. Aaron Hewett says at May 11th, 2007 at 11:52 pm

   I don’t disagree with the new laws and as a non-smoker I look forward to being able to visit a bar or club without coughing up a lung, having incredibly sore eyes or clothes smelling like I’d vomited a million ashtrays.

   If the department did assist in drafting the new laws (and I doubt they did), then it failed in preparing Responsible Authorities for dealing appropriately with the new laws.

   My gripe isn’t with the new laws introduced by the state government but simply the lack of foresight shown by the state government as a whole in appropriately dealing with, in a planning sense, the laws that they have introduced. This is not an either/or scenario, they can quite easily introduce smoking laws and deal with the “pettiness of policy fault finding”.

   The lack of preparedness has also been evident in the begrudging need by the state government to put on more trains because they were surprised that policies designed to increase train patronage have actually been working.

5. Kym says at May 20th, 2007 at 6:56 pm

   The new amendments to the Tobacco Act 1987 to prohibit smoking within enclosed licensed premises and certain outdoor dining or drinking areas is an excellent step forward that the Victorian Government is taking.

   The cost of smoking has been shown by Chloe to be too great, to those who smoke, to those who work in the pubs and clubs and to those non-smokers who socialise there.

   As pointed out by Aaron Hewett, yes there does seem to be some issues and gaps with the new policy, however would it be better for the Government to sit back at this time and not implement anything until they felt they had comprehensive policy which would cover every aspect? Even then, I am sure there would still be issues with the policy that couldn’t be pre-empted.

   Personally, to implement a ban on smoking in enclosed licence premises and then to require a space to be specifically provided for smokers as stated in the Ryan v Port Phillip City Council decision, which stated that, “In general, we consider that a suitably designed and located outdoor area for smoking should be provided, on the site of the licensed premises….” seems hypocritical. If the emphasis is trying to ban smoking, why then should spaces be specifically designed for smokers? Why should it be the responsibility of the proprietor to supply something which will cost them money, due to the fact the Government has introduced this policy? I feel there should be no requirement for businesses to provide ‘smoking areas.’ The emphasis should be on a complete non-smoking environment. The flow on effects of this ban may be an increase in people quitting smoking, which is what the Government supports through its Quit campaign.

   After reading “Irish smoking ban effective at clearing the air”(2007) and looking at the statistics which state that, after the bans there was an “83 percent reduction in tiny particulate matter in bar air,” we can only look at the positives that this policy will have on the health of the patrons and workers of these businesses.

   Reference
   Irish smoking ban effective at clearing the air, 18 April 2007 [online] http://www.news-medical.net/?id=23718 [accessed 20/5/2007]

6. Chloe says at May 31st, 2007 at 4:45 pm

   Thanks for your comments Campbell, Aaron and Kym.

   I agree with both of you, Aaron and Campbell. The aims of the tobacco reforms are extremely positive and have been widely welcomed, however to be effective there needs to be practical guidelines for the Responsible Authority to assess and manage relevant applications. The State Government has failed to provide such guidelines and Council’s have been left to their own interpretation and implementation of the reforms.

   As you mention Campbell, with all new policies there is an element of uncertainty and unforseen issues that must be addressed as they arise. Yet it appears the State Government has significantly under-estimated the implications of the reforms in relation to planning. Notably, the reforms are a more prominent issue for some Council’s than others. Arguably, it has been the biggest and most challenging issue to have faced the City of Melbourne planning department this year.

   Assessing what may appear to be a straightforward application, has quickly become very complex. For example, an application for buildings and works to provide an outdoor smoking area must be advertised, as the amenity of surrounding uses such as residential and public space must be protected. Referred to urban design and heritage consultants (where heritage is relevant). Amenity issues may prompt consideration of acoustic screening, limited hours of operation, management plans, number of patrons etc. The Health Department will no doubt be consulted. Depending on the location, other issues such as butt litter, impact on the footpath and public space warrants comment from Street Activities Branch or the like, and may also require a permit under the Activities Local Law.

   In relation to applications for a new use that do not propose a smoking area, the responsible authority may refuse to grant a permit or condition a permit to provide a suitable area. This is arguably facilitating smoking, working against the advocacy of the Health Department and others who have called for the reforms.

   Thanks Campbell for your reference to “Making Smoking History Worldwide” (Howard, K et al. 2007), it was an interesting read and I hope to comment on overseas and other states tobacco reforms at a later date.

7. Chloe says at June 4th, 2007 at 12:02 am

   Just a quick reflection on this week’s “World No Tobacco Day”. In case you weren’t aware “World No Tobacco Day” is held every year on the 31st of May. The initiative was founded by the World Health Organisation (WHO) and first held in 1987. The initiative “draws global attention to the tobacco epidemic and the preventable death and disease it causes”. It is also an expression of the 192 Member States commitment to tackling public health challenges posed by tobacco consumption. Each year there is a specific theme, this years theme is “100% smoke-free is the only answer” (WHO, 2007).

   The WHO (2007) states, “Neither ventilation nor filtration, alone or in combination, can reduce exposure levels of tobacco smoke indoors to levels that are considered acceptable, even in terms of odour, much less health effects. The evidence demands an immediate, decisive response, to protect the health of all people”.

   The WHO seeks total smoke free indoor environments. Justification for their stance can be found on their website: http://www.who.int/tobacco/communications/events/wntd/2007/smoke_free/en/index.html

   A summary of the last 7 “World No Tobacco Day” themes can also be found on WHO website.

   2006 – Tobacco: deadly in any form or disguise
   2005 – Health professions against tobacco
   2004 – Tobacco and poverty, a vicious cycle
   2003 – Tobacco free film, tobacco free fashion
   2002 – Tobacco free sports
   2001 – Second-hand smoke kills
   2000 – Tobacco kills, don’t be duped

   http://www.who.int/tobacco/communications/events/wntd/en/index.html

   (I found the discussions on “Tobacco and poverty, a vicious circle”, “Second-hand smoke kills” and “Tobacco kills, don’t be duped” particularly interesting).

   On Thursday, in Australia, there were a number of “World No Tobacco Day” small-scale initiatives such as school speeches, brochures, posters, radio broadcasts and cessation resource packs. The largest initiatives appeared to be “major blitz on smoking at the Royal Hobart Hospital” and the NSW Tobacco Guidelines launched on “World No Tobacco Day”. In comparison with other countries, Australia clearly falls short in their campaigning against smoking. For example, India’s activities included: press conferences with celebrities from the film, fashion and music industries, rallies, street plays, information booths, films screened in public spaces, a 120 day media advocacy and communications campaign, round table discussions with medical experts, public lectures and workshops, poster competitions for students, and the list goes on with both long and short-term strategies (WHO,2007).

   “Smoking is Australia’s no. 1 preventable health problem. Each year it kills more than 15,000 people and costs the nation $21 billion in health and social costs” (ASH Australia, 2007). It is time to step up the campaign against the social, health and economic challenges caused by smoking. Victoria’s recent Tobacco Reform is no doubt landmark legislation, however it is another example of Victoria playing catch-up to other states in Australia and overseas.

   References

   1. Action on Smoking and Health Australia (ASH AUST). (2007) What’s wrong and what’s needed. http://www.ashaust.org.au/. Last update unknown. [Accessed 30/05/2007]

   2. World Health Organisation (WHO). (2007) Tobacco Free Initiative, Communications and media. http://www.who.int/tobacco/communications/en/. Last update unknown. [Accessed 30/05/2007]

8. Chloe says at June 6th, 2007 at 10:14 pm

   Apologies for not outlining this earlier, but the debate surrounding the Tobacco Reforms relates to the following theoretical questions/issues:

   • Is ‘passive smoke’ a public health hazard? The tobacco industry seeks to minimise the effect, whereas the World Health Organisation and public health argument is that it is definitely hazardous.
   • Should there be adult venues where people’s freedom of choice to participate in the consumption of a saleable product (tobacco) can be exercised? Is it limiting individual freedom to ban it?

   Personally, I am of the opinion that passive smoke is a major public health issue, especially indoors, and therefore am in favour of the Tobacco Reforms. I am in support of individuals’ right to clean air and if that means prohibiting people’s choice to smoke in certain public areas, so be it.

9. Chloe says at June 8th, 2007 at 11:37 am

   Following on from my comment that “Victoria is playing catch-up” to other states, territories and countries, below is a discussion of Victoria’s Tobacco Reform in relation to others.

   Countries that have banned smoking in enclosed workplace areas (including licensed venues) and the dates that the legislation became/will become effective include: Ireland (April 2004), Norway (June 2004), New Zealand (Dec 2004), Bhutan (March 2005), Uruguay (March 2006), Lithuania (Jan 2007), Iceland (Jan 2007), and France (2008). Fifteen US states and districts have 100% smoking bans in indoor restaurants and bars (Jan 1998 – Nov 2006). Nine of the thirteen Canadian provinces/territories are 100% workplace smoke-free (May 2004 to Dec 2006). In the United Kingdom, the House of Commons has adopted a bill to ban smoking in indoor licensed venues and is awaiting final sanction. The law is expected to come into force this year (Cunningham, 2006).

   All Australian states and territories, except the Northern Territory, have implemented similar tobacco reforms. Action on Smoking and Health Australia (ASH AUST, 2007) has ranked the states and territories according to “which Australian governments are best protecting workplace safety and public health” a summary is provided below.

   Queensland: “Very Good”. ASH AUST considers QLD to be “Australia’s best practice legislative model”. Since July 2006 licensed premises have been completely smoke-free (indoor and outdoor). However separate, unserviced smoking areas must be provided.

   Tasmania: “Good”. Since January 2006 indoor licensed premises and 50% of outdoor areas have been smoke-free.

   Australian Capital Territory: “Fair”. Since December 2006 smoking has been banned in licensed premises that are 75% or more enclosed. Staff are not required to work in areas where smoking is permitted. The government has instigated a smoking ban in outdoor areas, however a deadline has not been set.

   Western Australia: “Fair”. Since July 2006 all indoor licensed premises have been smoke free. However, some areas up to 50% enclosed permit smoking and are serviced by hospitality workers.

   South Australia: “Poor”. From July 2007 smoking in indoor licensed premises will be banned. In outdoor premises (70% enclosed or less) smoking will be allowed and the area will be serviced.

   Victoria: “Poor”. From July 2007 indoor licensed premises 75% enclosed or more and with a roof will be smoke-free. Outdoor smoking areas will be staffed.

   New South Wales: “Poor”. From July 2007 indoor licensed premises 75% enclosed or more will be smoke-free.

   Northern Territory: “Very Poor”. The NT is the only jurisdiction just to set a deadline to ban smoking in indoor licensed premises. NT smoke-free public places legislation currently includes doorways, thoroughfares and dance floors in licensed premises.

   As we can see, Victoria is not a leader but a lagger in terms of tobacco reforms, protecting workplace safety and public health. The obvious questions are therefore:

   • Why has it taken Victoria so long to implement these reforms?
   • Is it enough?

   References

   1. Action on Smoking and Health in Australia (ASH AUST). (2007) Worldwide Trend. http:www.ashaust.org.au/SF’03/law.htm#worldwide%trend. Last update unknown. [Accessed 30/05/2007]
   2. Cunningham, R. (2006) National and Subnational Legislation Requiring 100% Smoke-free Restaurants and Bars. Canadian Cancer Society. http://tobacco.health.usyd.edu.au/site/supersite/resources/pdfs/Cunningham200607.pdf. Last update unknown. [Accessed 30/5/2007]

10. Chloe says at June 11th, 2007 at 3:49 pm

    It’s important to note that public health is not just the responsibility of state governments, local governments have an important role to play also. Victorian local governments can further the cause of the Tobacco Reforms, making public areas cleaner and local communities healthier by banning smoking. For example, Mosman Council has banned smoking from its beaches and alfresco dining areas, on or near playgrounds, parks, sportsgrounds and reserves, near Council properties and at Council run events. Since October 2004, Waverly Council has imposed a $110 fine for anyone lighting up on its beaches (Bondi, Bronte and Tamarama) (ASH AUST, 2007).

    At present I am unaware of any local governments in Melbourne or regional Victoria implementing such bans. Perhaps this is the “bottom up” approach we need in conjunction with the “top down” state wide Tobacco Reforms. As young planners, I believe this is an excellent example of the advocacy we can be apart of.

    Reference

    1. Action on Smoking and Health in Australia (ASH AUST). (2007) Tobacco Facts For Local Governments. Published November 2004

11. Eliot says at June 19th, 2007 at 4:35 pm

    I too am concerned about the planning direction taken on this, beyond the lack of guidance and the likely inconsistency of decisions. This relates to the significance of the Ryan decision, and planning in the CCZ (i.e. CBD)

    Although the Ryan decision has comprehensively covered a range of situations in terms of what is available to a licensed premises to control noise from patron activity, it has not acknowledged the related design/acoustics problems for venues. It has also not specifically addressed land use context, which is an important part of the decision making process in the CCZ.

    The very reasonable assertion that the change in tobacco legislation will create costs that must be borne by the licensed premises industry requires further scrutiny when looking at music noise and design challenges arising from the direction advocated by the member.

    A key issue to consider is that the acoustically ideal location for a bar/nightclub style venue is often in a situation where access to outdoor smoking areas is unachievable. For example the best location for controlling low frequency (doof) music noise is usually in a basement. It is of substantial economic benefit to the licensed premises industry (and of amenity benefit to residents) to utilise such spaces, rather than carrying out soundproofing on more open structures. To outright deny these types of applications based on the lack of smoking wells or similar would be unfortunate.

    Other acoustically ideal locations for a music venue are heavy blockwork buildings which can be “sealed up” with minimal openings. The cost of providing smoking areas in these buildings whilst still maintaining acoustic integrity can be very substantial. It may also be restricted by heritage limitations.

    If the position advocated by the member was applied at its most literal it may only permit licensed premises in expensive custom built/refurbished establishments. Additional costs would be in the tens to hundreds of thousands of dollars for individual proprietors. This level of economic burden would be likely to limit the diversity of entertainment venues that Melbourne is valued for.

    Another component which requires consideration is the land use context in which the application occurs, CCZ being the main example of concern. VCAT cases around licensed premises have referred to the land use amenity principles of the CCZ to emphasise that some degree of patron activity on the streets inevitable part of inner city living and a natural consequence of allowing venues.

    It should be recognised that even if a particular venue did have its outdoor area designed and located to not have any noise impact on the locality, the noise created by general patron activity in the laneways of the CCZ are an inherent part of allowing bar and nightclub activity in the first place. Although the immediate issue of the application at hand may be resolved by requiring specific outdoor areas this would not resolve the wider problem of patron noise impacts on residential uses in the CCZ.

    It is worth noting that while control of low frequency noise is a substantial design challenge which must be achieved at the licensed premises through careful acoustic design, it is relatively easy (and inexpensive) to reduce most patron noise through a basic double glazing in homes located in areas such as the Capital City Zone.

    I believe that in the case of the CCZ, it would be more appropriate for the Responsible Authority to consider a noise “minimisation” approach for applications, rather than refusing applications based on the lack of smoking areas. Such an approach would best reflect the land use amenity principles of the CCZ and provide a reasonable approach when elements such as the natural soundproofing of a basement location outweigh the negative impacts of some patron activity on street.

12. Lex says at January 21st, 2008 at 4:57 pm

    There is a policy statement relevant to VCAT planning decisions here: http://www.health.vic.gov.au/tobaccoreforms/legislation.htm -
    “This statement provides information on the objectives and context of the Victorian Government’s policy in relation to the interpretation and implementation of the smoking offence in section 5A of the Tobacco Act 1987.”

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