Q/OFL/2012/2014 IN THE MATTER of the Sale and Supply of Liquor Act 2012 AND IN THE MATTER of an application by HARPREET KAUR LIMITED pursuant to section 127 of the Act for the renewal of an off licence with a change of conditions in respect of premises situated at Shop 3, 2-10 Rushgreen Avenue, Papakura known as The Bottle-O Pahurehure BEFORE THE AUCKLAND DISTRICT LICENSING COMMITTEE Chairperson: Ms Katia Fraser Members: Ms Fia Turner Mr Michael Goudie HEARING at Auckland on 23 May 2014 at 9.30am APPEARANCES Mr John Young Ms June Walden Constable Tetyana Kopyl Objectors Mr Robert Rose Dr Grant Hewison Graham Purdy Counsel for the applicant District Licensing Inspector NZ Police Agent for the Papakura Local Board DECISION OF THE AUCKLAND DISTRICT LICENSING COMMITTEE Introduction [1] We have before us an application by HARPREET KAUR LIMITED for the renewal of an off licence with a request for a change of conditions in respect of premises situated at Shop 3, 2-10 Rushgreen Avenue, Papakura. 1
[2] The application was filed on 19 February 2014. Accordingly, the Sale and Supply of Alcohol Act 2012 applies. [3] The applicant seeks the renewal of its licence as well as a change of conditions in relation to its operating hours. Currently the applicant closes at 9pm Thursday to Saturday and an extension of 1 hour has been sought to enable the applicant to close at 10pm Thursday to Saturday. Reporting Agencies [4] The inspector has filed a report recommending the granting of the renewal of the licence. The inspector has not opposed the increase in trading hours. Neither the Medical Officer of Health nor the Police have opposed the application. Background [5] Mr Satnam Bains is the sole director and shareholder of the applicant company. He gave evidence on behalf of the applicant. The applicant obtained its off-licence following a Liquor Licensing Authority hearing on 5 February 2013. 1 That application attracted 124 objections as well as a petition bearing in excess of 1,000 signatures. None of the objectors who appeared at the hearing objected to the current application. [6] Four objections have been lodged in respect of the application. One of the objectors (Mr Gillespie) did not wish to be heard. Three of the objectors gave evidence (Mr Rose, Mr Purdy and the Papakura Local Board). The four objectors lodged identical submissions. The objections raised the following issues: (a) (b) (c) The application will not meet the object of the Act in that it will not minimise the harm caused by the excessive or inappropriate consumption of alcohol in the local community; The hours and days are too long; and The amenity and good order of the locality will likely be increased, by more than a minor extent, by the effects of the refusal to renew the licence. [7] The premises is located within a small shopping centre in Pahurehure. It is surrounded by residential properties and is one of 9 retail outlets adjacent to a central courtyard. [8] The inspector s report states that there are no Police concerns documented regarding the level of crime or disorder in the area which can be linked to the operation of the operation of the premises nor are there any indications that the premises contribute adversely to the crime and order in the area. 1 [2013] NZARLA PH 111. 2
The evidence [9] Evidence was presented by Mr Bains in relation to the operation of the premises. He also presented evidence on the good order and amenity of the locality and the reasons why the increase in hours was sought. We were impressed with Mr Bains evidence and his conduct during the hearing. [10] Mr Purdy presented evidence on behalf of the Papakura Local Board in relation to the position of the Board on alcohol, alcohol in the community, the proposed trading hours, the applicant s suitability and amenity and good order. He presented a set of conditions which the Board would require should the licence be renewed. Mr Purdy was of the view that patrons purchase alcohol from the applicant and then use the nearby reserve, Pahurehure Reserve, to drink. He further stated that any empty bottles found in the reserve must have come from the applicant s store because there are no other bottle stores nearby. He also believed that there are large piles of rubbish in the vicinity of the premises which are likely to have originated from the premises. [11] Mr Purdy filed a submission in his personal capacity. It was not clear whether Mr Purdy, in his personal capacity, was represented by Dr Hewison and whether his evidence presented during the hearing was made on behalf of the Local Board, was also presented to support his personal submission. [12] Evidence was also presented by Mr Waugh, Ms Templeton and Mr McIntee (the Board Chair) in support of the Local Board, which was of a similar nature to the other evidence presented by the Local Board. Ms Templeton is currently working at Rosehill College and stated that she has witnessed groups of school students walking up and down Elliott Street. Ms Templeton confirmed under cross-examination that the premises could not be viewed from Elliott Street. [13] Mr Waugh s residence backs onto the Pahurehure Reserve. He stated that the Reserve is well utilised by children and young persons. He also stated that there are often empty alcohol containers out the back of the store which can be seen from the swings. [14] Dr Michael Cameron also presented evidence on behalf of the Local Board. His evidence related to a report he authored entitled The locality-specific impacts of alcohol outlet density in the North Island of New Zealand, 2006-2011. Research report commissioned by the Health Promotion Agency. 2 Under cross-examination by Mr Young, Dr Cameron confirmed that his report was general in nature and did not specifically identify the premises as a cause of particular concern. [15] Mr Rose s evidence expanded on the issues raised in his submission. 2 Cameron, M.P., Cochrane, W., Gordon, C., & Livingston, M. (2013). Wellington: Health Promotion Agency. 3
[16] Constable Kopyl in her evidence produced an Alcohol-related Crime Harm: Environmental Scan report dated 13 March 2014. None of the incidents reported could be directly linked to the premises. [17] Ms Walden, a warranted Alcohol Licensing Inspector, also presented evidence, which was consistent with her report on the application. We were impressed with the evidence presented by Ms Walden and her answers when cross-examined by Dr Hewison. [18] Mr Young, counsel for the applicant, addressed a number of issues, including the following: (a) (b) (c) (d) (e) The proposed change to trading hours has been validly sought; a separate application is not required; Mr Purdy does not have standing to object; The committee is limited in terms of the conditions it can impose; The objections do not raise any specific issues with the operation of the premises; and The applicant is suitable. [19] Dr Hewison also presented submission on the same issues as Mr Young in support of the Local Board s position. Committee s Decision and Reasons [20] In making a decision on the application regard must be had to sections 120 and 131 of the Sale and Supply of Alcohol Act 2012. Status [21] The first issue which needs to be determined is whether Mr Purdy has status. Dr Hewison presented some submissions on the issue which purported to give Mr Purdy status because of his role on the Local Board. We were not convinced by this argument. There is nothing in the Act which provides Mr Purdy status as an objector on the basis of his position on the Local Board. Dr Hewison described this aspect of his submissions as reflecting a 'novel' approach. We welcome new approaches, however we remind Dr Hewison that novelty does not excuse the absence of substance, nor does it allow for argument without legal merit. We are also not convinced that the local board has any status to file objections under the Act. We will deal with this issue in more detail below. 4
[22] Dr Hewison raised an argument of Mr Purdy s geographical proximity to the premises which, in his view, provides him with status. 3 We consider that this argument has some merit and that Mr Purdy does have status because his residence is within 1 kilometre of the premises. We do not agree that the appropriate geographical proximity for an objection in relation to the application is the boundaries of the Papakura Local Board area. There is no authority which supports such a contention. [23] We questioned Dr Hewison during the hearing on whether the Papakura Local Board had legal authority to file its objection. Dr Hewison stated that the High Court decision of Otara-Papatoetoe Local Board v Joban Enterprises Limited 4 provided local boards with the authority to file objections on liquor licence applications. The Joban decision does not address the issue of whether local boards are entitled to file objections on liquor licence applications because the issue was not a point of contention to be decided by the High Court. We do not consider that the decision provides the authority required by the Local Board. [24] Dr Hewison also relied on section 10 of the Local Government (Auckland Council) Act 2009. Again, we are at a loss as to why this section is being relied upon in this matter. Section 10 relates to the purpose for which local boards are established. It does not, however, provide local boards with any powers. [25] Section 16, which refers to the decision-making powers of local boards, does not provide local boards with the power which they require to make such objections. The matters identified in that section do not relate to regulatory activities of the Auckland Council, including liquor licensing. It would appear that liquor licensing is not a matter which local board can be involved in, unless the local alcohol policy provides them that power. [26] Given that the Local Board s submission is identical to that of Mr Rose and Mr Purdy, and they have status, we do not consider that the issue of whether the Local Board has status is a matter we need to determine in relation to this application. We would recommend that the Local Board, however, obtain legal advice on the matter and address the issue with the Auckland Council given that it appears it is objecting to all liquor licences within its area. Variation [27] The second issue which we will deal with relates to Mr Purdy s contention that the applicant has not made the correct application to increase his operating hours. In Mr Purdy s view the applicant should have made a separate application under section 120 of the Act. [28] The applicant filed with the Council one application for the renewal of its off-licence. The application used was the Council s standard form which includes a section on 3 Liquor World Limited LLA PH1189/09, 16 October 2009; Re Sung-Kim LLA PH1470/09, 22 December 2009. 4 [2012] NZHC 1406. 5
whether the applicant seeks a change of condition. The applicant requested a variation of its hours and included the reason for such a variation as follows: This is in response to feedback from local residents. The days and hours applied are modest. [29] In Mr Purdy s view the proposal to change the trading hours through the renewal process form is a nullity. We do not agree. The applicant used the Council s form and provided the required information. While the Act states that the application must be made in the prescribed form and manner, 5 clause 42(3) of the Sale and Supply of Alcohol Regulations 2013 allows variations to any form, the particulars inserted or both. [30] We note that section 26 of the Interpretation Act 1999 provides that A form is not invalid just because it contains minor differences from a prescribed form as long as the form still has the same effect and is not misleading. Provided all required information is present, that is sufficient. [31] In determining the application for the renewal we will consider section 131 and in determining the application for a variation of the conditions we will consider section 120. It is not relevant that the inspector did not refer to section 120 in her report. We do not consider that objectors and potential objectors were prejudiced. The public notice made it clear that the applicant was seeking an increase in trading hours. [32] We also do not agree with Mr Purdy s contention that the tests between a renewal and variation of conditions are fundamentally different. We agree with the submissions of Mr Young in this respect. Public Notice [33] The public notice for the application did not refer to trading on Sunday. During the hearing the Committee requested that the Applicant address this issue. Closing submissions were made on behalf of the applicant by Mr Young in this respect. He submitted that although the public notice did not refer to Sunday trading: (a) (b) (c) (d) (e) the public notice affixed to the physical premises did include Sunday trading; the application also made such reference; the objectors did not appear to be aware of the issue until it was pointed out by the Committee; the objectors did not oppose the application on that basis; and the premises have traded on Sundays for more than 12 months. 5 Section 127(2). 6
[34] Mr Young submitted that it was appropriate for a waiver to be granted under section 208 for the omission in the public notice. [35] We have considered section 208 and the submissions made by Mr Young and grant the requested waiver. In our view, the omission was not wilful and no person will be prejudiced. Conditions [36] Before we turn to the specific criteria which we must consider under sections 120 and 131, we will deal with the final issue raised by the objectors and applicant. The objectors have stated that should the committee be minded to grant the variation of condition and the renewal, that a number of conditions (which they provided) should be imposed on the licence. [37] The applicant is of the view that the Committee does not have the authority to impose some of those conditions. In particular, the applicant does not agree with the conditions relating to RTDs, signage, staff training, minors, price discounting, premises and deliveries. [38] We do not fully agree with Mr Young and consider that one of the conditions proposed by the objectors is reasonable and appropriate. The Committee is entitled to impose any reasonable conditions not inconsistent with the Act. 6 [39] We note that some of the conditions requested by the Local Board are requirements of the Act and such do not need to be specified in the licence. The Local Board has requested that the premises be designated as supervised. The premises currently has that designation and it is not proposed that the designation be amended. Decision [40] Finally, we can turn to the criteria under sections 120 and 131. We conclude that: (a) (b) (c) (d) (e) There is no evidence that the company is not a suitable applicant to hold a liquor licence. There is no relevant local alcohol policy. We consider that the hours sought by the applicant are reasonable and not excessive. The design and layout of the premises are appropriate. The other goods sold by the applicant are appropriate. 6 Section 117. 7
(f) (g) (h) We do not consider the amenity and good order of the locality will be increased, by more than a minor extent, by the effects of a refusal to renew. We do not consider that the proposed variation of trading hours will reduce the amenity and good order of the locality, to more than a minor extent. The applicant is only seeking one extra hour for three days a week. The extended hours fall below those of other off-licences in the area. The applicant appears to have appropriate systems, staff, and training to comply with the law. [41] No evidence has been adduced to indicate that the granting of the renewal of this licence with increased hours would result in an unsafe or irresponsible sale or supply of alcohol or an increase in the harm envisaged by the Act. We do not support Dr Hewison s more likely than not test. No factual information was presented by the objectors that the applicant was not suitable or that any decrease in the amenity and good order of the locality (if, in fact, there was any) was related to the premises. The objectors also did not convince us that large groups of children were in close proximity of the premises for long period of time. On the contrary, the evidence was that the students were only in the area for short periods of time and generally were walking up and down Elliott Street and, accordingly, could not see the premises. [42] The matters provided for in sections 105, 106 and 131 of the Act have been considered by the Committee and in each case it finds that it would be a proper exercise of its functions to grant the renewal of the off licence, with increased trading hours. [43] We are satisfied as to the matters to which we must have regard in sections 120 and 131 of the Sale and Supply of Liquor Act, and we are satisfied that this application meets the purpose and object of the Act. Accordingly, we grant the renewal of the off licence, with increased trading hours. [44] We refer any party who wishes to appeal this decision or part of this decision to section 155 of the Act. Conditions [45] The conditions of the licence remain the same apart from the following: Liquor may be sold or delivered only on the following days and during the following hours: Sunday to Wednesday 9am to 9pm Thursday to Saturday 9am to 10pm No sales of single cans or bottles of beer or RTDs are permitted 8
[46] The licence will not issue until the expiry of 10 working days from the date of this decision. That period of time is the time provided in section 155(1) of the Act for the lodging of a notice of appeal. Dated at Auckland this 9th day of June 2014 KATIA FRASER Chairperson Auckland District Licensing Agency 9