tate Crest New South Wales Supreme Court *CITATION :* *Dubbo RSL Memorial
Club Limited & Anor v Steppat & Ors [2008] NSWSC 965* *HEARING DATE(S)
:* 11 September 2008 *JUDGMENT DATE :* 19 September 2008 *JURISDICTION :* Civil
*JUDGMENT OF :* McClellan CJatCL *DECISION :* 1. The plaintiffs' summons
dismissed with costs. 2. I make the orders sought in the defendants' cross
summons as follows: 1. A declaration that the internal roofed area of the
Outdoor Gaming Terrace of the first plaintiff?s premises is an ?enclosed public
place? for the purpose of the definition of ?smoke-free area? in s 6 of the
Smoke-free Environment Act 2000. 2 A declaration that the roofed area of the TAB
Outdoor Area of the first plaintiff?s premises is an ?enclosed public place? for
the purpose of the definition of ?smoke-free area? in s 6 of the Smoke-free
Environment Act 2000. *CATCHWORDS :* PUBLIC HEALTH - declarations sought under
Smoke-free Environment Act 2000 - licensed club premises - whether part of club
premises an "enclosed public place" - whether covered area and
uncovered area of club premises a single "public place" *LEGISLATION
CITED :* Smoke-free Environment Act 2000 *CATEGORY :* Principal judgment
*PARTIES :* Dubbo RSL Memorial Club (1st Pltf) The Registered Clubs Association
of NSW (2nd Pltf) Ingo-Reiner Gerd Steppat (1st Def) Mark Nave (2nd Def) State
of New South Wales (3rd Def) *FILE NUMBER(S) :* *SC* 2007/30124 *COUNSEL : * C
Birch SC/T Lynch (Pltfs) N Williams SC/S J Free (Defs) *SOLICITORS : * Pigott
Stinson (Pltfs) Crown Solicitor's Office (Defs) spacer image *IN THE SUPREME
COURT* *OF NEW SOUTH WALES* *COMMON LAW DIVISION* *ADMINISTATIVE LAW LIST* *McCLELLAN
CJ at CL* *FRIDAY, 19 SEPTEMBER 2008* *30124/2007 DUBBO RSL MEMORIAL CLUB
LIMITED & ORS v STEPPAT & ANOR* *JUDGMENT* 1 *HIS HONOUR*: The
plaintiffs seek declarations and other relief relating to the status under the
/Smoke-free Environment Act /2000 (the Act) of two areas of the Dubbo RSL
Memorial Club. They are referred to as the ?outdoor gaming terrace? and the ?TAB
outdoor area?. In response to the plaintiffs? claim the State of New South Wales
has filed a cross summons seeking declarations. The issue to be resolved is of
general significance to licensed premises. It concerns whether smoking is
allowed in some covered areas of premises which adjoin uncovered, but walled,
areas of those premises. 2 The parties have reached agreement as to the relevant
facts. Isometric projections of the relevant areas of the Club were tendered
together with photographs of those areas. The area described as the ?outdoor
gaming terrace? is comprised in part of an area covered by a roof in which
gaming machines and other facilities are provided. Beyond the roof is an open
terrace area. The covered area is comprised of approximately 75 square metres.
The open area is approximately 84 square metres. The area described as the ?TAB
outdoor area? is comprised in part of an area covered by a roof in which there
are recreation facilities including television screens and other facilities to
facilitate betting. Beyond the roof of that area is an open terrace. The covered
area is comprised of approximately 125 square metres. The open area is
approximately 75 square metres. 3 The Act has the object of promoting ?public
health by reducing exposure to tobacco and other smoke in enclosed public
places? (s 3). ?Public place? is defined and means: ?A place ? that the public,
or a section of the public, is entitled to use or that is open to, or is being
used by, the public or a section of the public.? 4 ?Enclosed? is also defined in
the following terms: ?In relation to a public place, means having a ceiling or
roof and, except for doors and passageways, completely or substantially
enclosed, whether permanently or temporarily.? 5 Section 7 of the Act makes it
an offence for a person to smoke in a ?smoke-free area? and s 8 imposes
obligations upon the occupier with respect to such an area. ?Smoke-free area? is
defined in s 6 and means ?any enclosed public place? (s 6(1)). Section 6(2)
provides that a ?smoke-free area?, includes ?any place, or part of a place?,
(this will include part of club premises), ?that is an enclosed public place
(irrespective of the name by which the particular place is known)?. Accordingly
the fact that the Club has chosen to identify the areas as ?outdoor areas?
cannot determine their classification for the purpose of the legislation. 6
Section 23 of the Act provides a regulation making power. Clause 6 of the
Regulations provides guidelines for determining what places are enclosed. It
provides as follows: ?(1) The provisions of this clause prescribe guidelines in
relation to determining what is an enclosed public place and when a covered
outside area is considered to be substantially enclosed for the purposes of the
Act. (2) A public place is considered to be substantially enclosed if the total
area of the ceiling and wall surfaces (the /total actual enclosed area/) of the
public place is more than 75 per cent of its total notional ceiling and wall
area. (3) The /total notional ceiling and wall area/ is the sum of: (a) what
would be the total area of the wall surfaces if: (i) the walls were continuous
(any existing gap in the walls being filled by a surface of the minimum area
required for that purpose), and (ii) the walls were of a uniform height equal to
the lowest height of the ceiling, and (b) what would be the floor area of the
space within the walls if the walls were continuous as referred to in paragraph
(a). (4) The following are to be included as part of the total actual enclosed
area: (a) any gap in a wall or ceiling that does not open directly to the
outside, (b) any door, window or moveable structure that is, or is part of, a
ceiling or wall, regardless of whether the door, window or structure is open
(other than the area of any locked-open door or window), (c) the area of any
locked-open doors or windows, but only that part of the total area of all such
doors and windows that exceeds 15 per cent of the total notional ceiling and
wall area. (5) A gap in a wall or ceiling that opens directly to the outside
(other than a gap caused by a door, window or moveable structure being open) is
not to be included as part of the total actual enclosed area. (6) A gap, door,
window or moveable structure required to be included as part of the total actual
enclosed area is to be included as if the wall or ceiling were continuous and
the gap, or the space occupied by the door, window or moveable structure, were
filled by a surface of the minimum area required for that purpose. (7) In this
clause: /ceiling/ includes a roof or any structure or device (whether fixed or
moveable) that prevents or impedes upward airflow. /locked-open door/ or
/locked-open window/ means a door or window that opens directly to the outside
and is locked fully open (that is, secured in its fully open position by means
of a key operated lock). /moveable structure/ includes a retractable awning,
umbrella or any other moveable structure or device. /wall/ includes any
structure or device (whether fixed or moveable) that prevents or impedes lateral
airflow.? 7 I have examined plans and photographs of the relevant areas. In each
case a roofed area has been constructed which is contiguous with the
pre-existing enclosed areas of the Club. Either gaming facilities in the
?outdoor gaming terrace? or TAB related facilities in the ?TAB outdoor area? are
provided under cover. Each of these areas is configured as a large room with
folding doors which can be secured back to the walls leaving unimpeded access to
the area which is uncovered. In both cases the floor covering has been made
continuous so that a person moving from within the covered area to the outside
moves across the same covering materials. There are continuous walls around each
covered area until the open doorways. Walls continue around both of the
uncovered areas. The uncovered areas have some tables and chairs for the
convenience of patrons, who may be socialising and, perhaps, drinking and/or
smoking. 8 The parties are agreed on the measurements of the relevant areas
including ?notional areas? as shown in the drawings to which I have earlier
referred. That agreement is as follows: In relation to the ?outdoor gaming
terrace? the total area of the ceiling and wall surfaces is not more than 75% of
its total notional ceiling and wall area if that area is defined by reference to
the entire floor area including both the covered area and the uncovered area.
However, it is agreed that the total area of the ceiling and wall surfaces of
the internal roofed area of the terrace is more than 75% of its total notional
ceiling and wall area. In relation to the ?TAB outdoor area? the total area of
the ceiling and wall surfaces is not more than 75% of its total notional ceiling
and wall area if that area is defined by reference to the entire floor area.
However, it is agreed that the total area of the ceiling and wall surfaces of
the internal roofed area is more than 75% of its total notional ceiling and wall
area. 9 Accordingly, if in each case the covered area comprises the relevant
space it will be an ?enclosed public place? and accordingly a ?smoke-free area.?
Before determining whether a particular area of a building is an ?enclosed
public place? it is necessary to identify the area to which the criteria for
determining whether it is an enclosed place should be applied. Section 6(2), in
combination with Schedule 1, makes plain that, together with each of the other
types of premises in the schedule, part of a club premises may constitute a
public place. It would follow that each of the disputed areas is a public place.
The question is whether they are comprised of two places, one covered and the
other uncovered. 10 The plaintiff submitted that the whole of each of the areas
constituted a single public place for the purpose of the calculations pursuant
to cl 6 of the Regulations. In relation to the ?outdoor gaming terrace? area it
was submitted that there were five considerations which would lead to the
conclusion that it was one place. Those matters were the existence of continuous
walls along the covered and uncovered portions; the whole area has a significant
uniformity of purpose, namely an area for drinking and playing gaming machines,
the area is a single place with no internal obstacles or barriers to free
movement; the whole area is a single designated place in which patrons may smoke
while playing gaming machines or drinking and the whole terrace area would
present to an objective observer as a single place. 11 I do not accept this
submission. Although the walls are continuous the area does not have a
uniformity of purpose. The gaming facilities are confined to the covered area.
The uncovered area could not be utilised for that purpose and could only be
utilised as an outdoor area for socialising and related activities. In my
judgment it does not present as a single place even though there are no internal
barriers. It would be properly be described as a gaming room and an external
terrace. 12 In relation to the ?TAB outdoor area? the plaintiffs made similar
submissions. However, I am also of the opinion that the area is comprised of two
places. The covered area is an area used for viewing races on television,
playing gaming machines and other facilities and apparently for dancing. The
uncovered area would no doubt be utilised for drinking and socialising. The
total area would properly be described as a room providing TAB and related
facilities and an external terrace. 13 The Act provides that an ?_enclosed_
public place? is a public place having ?a ceiling or roof and ? is completely or
substantially enclosed?. Accordingly, it was submitted by the State that only
areas of a building with a ceiling or roof could be places which are ?completely
or substantially enclosed.? Areas without a roof could never be enclosed places.
In my opinion this submission is correct and accords with the object of the Act.
If the area in question is not covered by a roof the opportunity is available
for smoke to disperse to the atmosphere. However, when the relevant place has a
roof the smoke may only escape laterally and the extent of lateral openings
becomes the critical issue affecting the healthiness of the premises. 14 This
approach to the Act is confirmed by the Regulations. The guidelines in clause 6
of the Regulations provide the measurements and calculations which are to be
carried out in order to determine whether a particular public place ?is
substantially enclosed.? Clause 6(1) states that the clause prescribes
guidelines, in relation to determining what is an ?enclosed public place? and
when ?a covered outside area? is considered to be ?substantially enclosed?. The
guidelines must be applied in order to determine whether, in respect of a
particular area, the second limb of the definition of ?enclosed public place? is
satisfied. It is only necessary to undertake the calculation if the first limb
of the definition of ?enclosed? is satisfied in the sense that the area has a
?ceiling or roof?. The guideline proceeds from the assumption that the
calculation is being made with respect to an area which is covered. The
guidelines in the Regulations have no application to a place which does not have
a ceiling or roof. If there are gaps in the ceiling or roof, that place must be
assessed by reference to clause 6(4) and (5). The outdoor areas in the present
case could not be described as gaps in the ceiling or roof area of the indoor
places. 15 It would be a surprising result if, because it is possible to access
the uncovered area of a building from a covered area, the former being walled,
the status of the covered area changes. If the uncovered area did not have walls
there would be no question that it would be irrelevant to the determination of
the status of the covered area. The fact that it has walls does not change its
status and nor does it change the status of the adjacent covered area. 16 For
these reasons the plaintiffs? summons must be dismissed with costs. I make the
orders sought in the defendants? cross summons as follows: 1. A declaration that
the internal roofed area of the Outdoor Gaming Terrace of the first plaintiff?s
premises is an ?enclosed public place? for the purpose of the definition of
?smoke-free area? in s 6 of the /Smoke-free Environment Act /2000. 2. A
declaration that the roofed area of the TAB Outdoor Area of the first
plaintiff?s premises is an ?enclosed public place? for the purpose of the
definition of ?smoke-free area? in s 6 of the /Smoke-free Environment Act /2000.
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