Health
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Outdoor dining or drinking

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Since 1 July 2007, smoking is permitted in outdoor dining or drinking areas unless the area has a roof in place and walls that cover more than 75% of the total notional wall area.

Outdoor dining or drinking areas include the following places if predominantly used for the consumption of food and/or drinks:

This applies to any outdoor dining or drinking area, such as those attached to restaurants, cafes, licensed premises and other workplaces.

Downloads

The penalties referred to in the Fact Sheet and Guide documents are out of date. For the current penalties please refer to the penalties table below.

  Smoke-free guide: Licensed premises and outdoor dining or drinking areas

  Fact sheet: Licensed premises, outdoor dining or drinking areas

  Clarification - Outdoor dining and drinking areas
This document provides information on how the new law will be applied to certain types of outdoor dining or drinking areas.

Frequently asked questions

Q1: What is an ‘outdoor dining or drinking area’?

An outdoor dining or drinking area means any of the following outdoor areas that is predominately used for the consumption of food and/or drinks:

  • a balcony or veranda;
  • a courtyard;
  • a rooftop;
  • a marquee;
  • a street or footpath;
  • any similar outdoor area.
Q2: What does ‘total notional wall area’ mean?

What would be the total area of the wall surfaces if the walls were: at the perimeter of the roofed area and continuous and of a uniform height equal to the lowest height of the roof.

Q3: What is the definition of a roof or wall?

A wall will include any structure or device (whether fixed or movable) that prevents or significantly impedes lateral airflow, including a window or door.

A roof will include any structure or device (whether fixed or movable) that prevents or significantly impedes upward airflow, including a ceiling.

Q4: Will outdoor dining or drinking areas be required to be smoke-free?

Only if the area has a roof in place and the total actual area of the wall surfaces exceeds 75% of the total notional wall area.

Q5: What about when a balcony, courtyard, rooftop or other similar area has a roof and walls that cover less than 75% of the wall space?

If a balcony, veranda, courtyard, rooftop, marquee or footpath area has a roof, as well as walls that cover 75% or less of the total notional wall area then smoking will be permitted.

Q6: Will a temporary wall such as a retractable awning be regarded as a wall?

Yes it will. A wall can mean anything that is fixed or moveable that significantly impedes air flowing through it. For example, it will include plastic, canvas, dense foliage/hedges, thick shade cloth and other similar materials.

Q7: Can the smoking status of a balcony, veranda, courtyard, rooftop, marquee or footpath change?

Yes. Unlike enclosed licensed premises, the smoking status of balconies, verandas, courtyards, rooftops, marquees or footpaths may change depending on the position of the walls and roof.

Q8: Do Local Council planning permits provide approval under the Tobacco Act?

No, a planning permit does not cover the Tobacco Act. Being in receipt of a planning permit or planning approval does not mean that the proposed renovation or structure can allow smoking. Owners/managers need to ensure that they liaise with their Council’s Environmental Health Officer in regard to compliance under the Tobacco Act.

Q9: What about outdoor areas that are only partially covered?

A roof is any structure or device (whether fixed or movable) that prevents or significantly impedes upward airflow. The roof may have gaps or openings, but still prevent or significantly impede upward airflow. If a covering over an area significantly impedes upward airflow in the area as a whole, then it will be considered to be a ‘roof’. The effect of the partial roof must be determined as an effect on the area as a whole, rather than just on the part of the area that is covered.

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Penalties

Q10 What will be the penalty for allowing smoking in an outdoor dining or drinking area where there is a roof in place and walls that cover more than 75% of the total notional wall area?

The following penalties apply:

Breach of Tobacco Laws Infringement Notice Maximum Penalties the in
Magistrates' Court
Natural Person Body corporate Natural Person Body corporate
Person smoking in an outdoor dining or drinking area where there is a roof in place and walls that cover more than 75% of the total notional wall area

1 PU

-
5 PU

-

Person in charge of the outdoor dining or drinking area where there is a roof in place and walls that cover more than 75% of the total notional wall area at the time the smoking occurs

2 PU

-
10 PU

50 PU

Person in charge of the outdoor dining or drinking area where there is a roof in place and walls that cover more than 75% of the total notional wall area enclosed licensed premises where acceptable No Smoking signs are not displayed

2 PU

5 PU
10 PU

50 PU

Note: PU = penalty unit/s

Q11: What is the value of a penalty unit?

The value of a penalty unit is indexed annually. For the current value please see Legislation & Regulations.

Q12: Are there any defences?

Yes. The person in charge of the outdoor dining or drinking area at the time the smoking occurs will not be guilty of an offence if he/she can prove that they did not provide an ashtray, matches, lighter or any other thing designed to facilitate smoking and that:

  • they were not aware, and could not reasonably be expected to have been aware that smoking was occurring; or
  • they requested the person to stop smoking and informed the person they were committing an offence.