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High Court of New Zealand Decisions |
Last Updated: 4 March 2014
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV 2013-454-264 [2014] NZHC 270
BETWEEN TANGI UTIKERE Appellant
AND I S DHILLON AND SONS LIMITED Respondent
Hearing: 18 November 2013
Counsel: J Maassen for Appellant
A G Sherriff for Respondent
M Conway for District Licensing Inspector
Judgment: 25 February 2014
JUDGMENT OF THE HON JUSTICE KÓS
[1] On 2 April 2013 the Alcohol Regulatory and Licensing Authority
granted the respondent (DSL) an off-licence to operate a
liquor store in
Palmerston North. It is a distinctive feature of the application that although
it attracted a number of objections
from local residents, neither the police nor
the District Licensing Inspector opposed the grant.
[2] The appellant, Mr Utikere, was one of the objectors. He is a
Palmerston North city councillor. The licensed premises
would lie within his
ward. He now appeals the decision of the Authority. Appeals against grant of
a liquor licence are confined
to points of law.1
Background
[3] DSL wishes to open a new liquor store under the “Big
Barrel” franchise
brand. It already operates three other Big Barrel off-licences in other
areas of
Palmerston North. DSL’s shareholders operate a fourth store in
Feilding through a
1 Sale of Liquor Act 1989 (herein the SL Act), s
139.
UTIKERE v I S DHILLON AND SONS LIMITED [2014] NZHC 270 [25 February 2014]
different company. The proposed site of the new store is at the corner of
Botanical Road and Tremaine Avenue, on the border
between the suburbs of
Takaro and Highbury. DSL has plans to construct new premises on this site if
the licence is granted.2
[4] DSL was incorporated in March 2008 and began trading later that
year. Its directors and shareholders are brothers Baldeep
and Bhupinder
Dhillon. The franchisors of the Big Barrel Group are their cousins Palwinder
and Avtar Singh. Apart from one infraction,
DSL has a clean record as operators
of licensed premises. In July 2009 a member of staff at the one of DSL’s
Big Barrel stores
sold liquor to a minor in a controlled purchase operation.
As a consequence its licence was suspended for a period. In his brief
of
evidence Mr Baldeep Dhillon said:
Since that time we have gone through all the training procedures again. We
have put in extra measures to avoid further compliance
failure. In our stores,
we have security on the doors from Thursday to Saturday. We run our own mystery
shopper audit programme
to test our employees to make sure they ask for ID to
anyone who is looking below 25.
Between July 2009 and September 2012 five controlled purchase operations
were
conducted at DSL’s Big Barrel stores. No sales were made to
minors.
Community context
[5] To the west of the site lies the suburb of Highbury. Mr Utikere’s evidence included deprivation index statistics from the Ministry of Social Development. They show that large swathes of Highbury fall into the most deprived decile of New Zealand households. To the east is Takaro, a more mixed community. There are pockets that are less deprived, but on the whole, and particularly in the area closest to the proposed location, Takaro households fall around the seventh decile, meaning they are more deprived than the New Zealand average. There is a primary school
within 400m of the proposed site and a further five primary or
intermediate schools
2 Subsequent to the grant of the licence by the Authority, DSL purchased the off-licence premises across the road, adjacent to the Cloverlea Tavern. The fate of those premises, in the event the present licence is confirmed, is not known. As the matter was not the subject of formal evidence, I will disregard that development for the purposes of this appeal.
within 1.6km. There are five off-licences and one on-licence within that
1.6km radius.
Objections
[6] By my count, 28 individual objections were received to DSL’s
application. There were more than 350 signatures on petitions
lodged in
opposition. A further four individual objections, and more than 150 petition
signatures, were received out of time.
Some of the petition signatures lacked
sufficient detail or residential addresses to determine their validity or
standing. Six
individual objectors were disqualified because they lived too
far away.
Reports
[7] For the police Sergeant Ryan, the alcohol harm reduction
officer for Palmerston North, responded to the application.
The police noted
public concern, but did not oppose the application. They did not appear at the
hearing.
[8] Mrs Kroll, the district licensing inspector, did not oppose the
application. She commented that the respondent is a “hands
on”
operator. Its stores are “well run”. She noted a lack of evidence
linking the granting of the licence with
the harms objectors claimed would
arise.
[9] The medical officer of health for the MidCentral District Health
Board made no comment on the application.
Statutory scheme
[10] DSL’s application was one made under the SL Act. The Act is being repealed gradually as the Sale and Supply of Alcohol Act 2012 comes into force.3
The new SSA Act permits a broader range of considerations to be the subject of objection. Apart from the fact that this has occurred, and what it tells us about s 35 of the SL Act, it is irrelevant for present purposes. This application continues to be
dealt with under the SL Act.
3 Herein the SSA Act.
[11] The SL Act has a very different philosophical premise from, say, the Resource Management Act 1991.4 The SL Act places rather greater importance on reporting by the district licensing inspector and police.5 The RM Act permits submissions on a reasonably liberal basis. The SL Act imposes a significant standing threshold in s 32(1). It requires an objector to have a “greater interest in the application than the public generally.” In practice that has normally meant residing
within a one to two kilometre geographical radius. It is however accepted
by the respondent that Mr Utikere, as a city councillor
for the Takaro ward,
would meet the enhanced interest requirement regardless of residential
qualification.
[12] The RM Act permits submissions in support of a consent
application. The SL Act does not. Only objections may be filed under the SL
Act. The RM Act permits submitters to make
submissions on anything
“about” a notified resource consent application,6 or
matters within the ambit of a proposed plan change.7 The SL Act
confines the matters objectors may submit on under ss 32(3) and 35(1).
Objectors may produce evidence at the hearing.
But that evidence must relate
directly to the objection advanced. Objectors may not use evidence as a Trojan
horse to evade the
limits in ss 32(3) and 35(1).
[13] The object of the SL Act is as follows:
4 Object of Act
(1) The object of this Act is to establish a reasonable system of
control over the sale and supply of liquor to the public
with the aim of
contributing to the reduction of liquor abuse, so far as that can be achieved by
legislative means.
(2) The Licensing Authority, every District Licensing Agency, and any
Court hearing any appeal against any decision of the
Licensing Authority, shall
exercise its jurisdiction, powers, and discretions under this Act in the manner
that is most likely to
promote the object of this Act.
4 Herein the RM Act.
5 SL Act, s 33. The medical officer of health has a duty to report in relation to on-licences, but not off licences: s 11(1)(c). That said, the medical officer of health may still report on an application for an off-licence.
6 RM Act, s 91(1).
7 Palmerston North City Council v Motor Machinists Ltd [2013] NZHC 1290 at [91(d)].
[14] Off-licences are one of four forms of liquor licence permitted by
the SL Act. An off-licence authorises the holder to sell
or deliver liquor on
(or from) premises described in the licence to any other person, for consumption
off the premises. Licences
are issued to persons in relation to identified
premises. They cannot be transferred from one person to another, or from one
premises
to another. Section 31 of the SL Act provides for the form of
application, and its public notification. Although there was
some argument
before the Authority in relation to notification, that complaint was dismissed
by the Authority and is not pursued
here.
[15] As I have said, there is a standing limitation on who may object.
Section 32 of the SL Act provides both for the standing
limitation, and
constraint on the scope of objections. That provision provides:
32 Objections
(1) Any person who has a greater interest in the application than the
public generally may object to the grant of an off-licence.
(2) Every objection shall be in writing, and shall be filed
with the
District Licensing Agency within 10 working
days after the first publication of the public
notice of the making of the application.
(3) No objection may be made in relation to any matter other than one
specified in section
35(1) of this Act.
(4) In any case where—
(a) The application relates to any premises in respect of which an
off-licence is presently in force; and
(b) The applicant seeks the same conditions as those presently applying to
that licence,—
an objection may be made only in relation to the suitability of the
applicant.
(5) The Secretary
shall send a copy of every objection to the applicant.
[16] Section 33 requires the licensing inspector and the police to inquire into every application. Inspectors must inquire, and they must report. In contrast, the police must inquire, but need only report if they have any matters in opposition to the application. In this case, as we have seen, the police inquired, but reported only that they had no matters in opposition. They did not attend the hearing. As Mr Sherriff says, that is unusual, but not unprecedented. In the circumstances, it
might have been better if they had attended. It is generally desirable that
a police officer attends a hearing in case assistance
is needed by the
Authority.8 Particularly where the application has caused public
controversy.
[17] If an application is not opposed by the inspector or the police, and
if no compliant objections are received, the application
may be considered and
granted by the District Licensing Agency. If there is police or inspector
opposition, or there are valid objections,
the application must be referred to
the Authority: s 34.
[18] The Authority is established under Part 5 of the Act. It is common
ground that it is a specialist tribunal that acts judicially.
It is chaired by
a District Court Judge. In this case the Judge stood aside, because he knew one
of the objectors. His absence
did not alter the fundamental juridical nature of
the tribunal.
[19] Section 35 specifies the criteria for the consideration
of off-licence applications. It provides as follows:
35 Criteria for off-licences
(1) In considering any application for an off-licence, the [Licensing
Authority or District
Licensing Agency, as the case may be, must] have regard to the following
matters:
(a) The suitability of the applicant:
(b) The days on which and the hours during which the applicant
proposes to sell liquor:
(c) The areas of the premises, if any, that the applicant proposes
should be designated as restricted
areas or supervised
areas:
(d) The steps proposed to be taken by the applicant to ensure that the
requirements of this Act in relation to the sale of
liquor to
prohibited persons are observed:
(e) Whether the applicant is engaged, or proposes to engage,
in—
(i) The sale or supply of any other goods besides liquor;
or
(ii) The provision of any services other than those directly related
to the sale or supply of liquor,—
8 See the observations of Heath J in Otara-Papatoetoe Local Board v Joban Enterprises Ltd
[2012] NZHC 406, [2012] NZAR 717 at [32]–[35].
and, if so, the nature of those goods or services:
(f) Any matters dealt with in any report made under section
33 of this Act.
(2) The Licensing
Authority or District
Licensing Agency, as the case may be, must not take into account any
prejudicial effect that the grant of the
licence may have on the business conducted pursuant to any other
licence.
[20] That provision is, then, to be contrasted with the SSA Act. Section 105 of the SSA Act provides for consideration of the same matters as s 35 of the SL Act, but it also provides for consideration of any local alcohol policy, and the effects of the licence on the “amenity and good order of the locality”. Section 102 of the SSA Act (like s 32 of the SL Act) requires that objections be directed only at the criteria in s
105.
[21] It is, I think, a reasonable inference from the amendment that s 35
was not perceived as including those additional matters
as ones objectors might
address. But it is important to say at once that although ss 32(3) and 35(1) in
combination limit the scope
of what objectors may have regard to, the licensing
inspector, the police and the Authority itself, are not so constrained. As far
as they are concerned, s 35(1) is not an exclusive list of considerations.9
That provision only constrains objections.
[22] The SSA Act is the latest in a series of legislative iterations
governing the licensing of the sale of alcohol. One could
go as far back as
1881, but to no useful purpose here. It is sufficient to refer to only one Act
prior to the 1989 one, and that
is the Sale of Liquor Act 1962. The SL Act
significantly eased licensing restrictions in the 1962 Act. This point was
made clear
by the Court of Appeal in Meads Brothers Ltd v Rotorua District
Licensing Agency.10
In marked contrast with its predecessors the [SL] Act does not provide for
general economic regulation of the liquor industry as an
aspect of the licensing
system. The notion that if the availability of licences to sell and supply
liquor is restricted the abuse
of liquor will be diminished has been at the
heart of licensing systems in New Zealand since 1881 ... it was reflected, for
example,
in restrictions on authorising new licences for hotels and
taverns in accordance with the requirement that they were “necessary
and
desirable” that appeared in ss 74 and 75 of the Sale of Liquor Act 1972.
This barrier and others like it were dismantled
by the 1989 Act. The
previous
9 Wells Instrument & Electrical v Shree Sai Holdings Ltd [2011] NZHC 697; [2011] NZAR 655 (HC) at [22].
10 Meads Brothers Ltd v Rotorua District Licensing Agency [2001] NZCA 386; [2002] NZAR 308 (CA) at [24].
provisions had given certain existing licensees economic protection, an
intention which is clearly excluded from the current licensing
regime
...
[23] As Mr Sherriff submitted in this case:
The 2012 Act is moving forward to the past and will result, when it is all in force from December 2013, in a much more restrictive alcohol licensing regime. Proliferation and local amenity controls and national default maximum trading hours designed to turn back the clock all feature in the
2012 Act.
Authority decision appealed
[24] The Authority first concluded that DSL had complied with the notice
requirements of the SL Act. The objection that it had
not done so is not
pursued on appeal. Second, the Authority examined the business practices and
background of the applicant. It
reached favourable conclusions on the
suitability of Messrs Dhillon as principals, and Messrs Singh as
franchisors in support.
Third, the Authority reviewed reports from the
licensing inspector and police, observing that neither opposed the application.
Fourth, the Authority considered objections. Despite the large number of
objections received, few were able to be given weight.
Many individual
objectors lived too far away, or failed to appear at the hearing to address
their concerns with the Authority.
Those who objected by petition suffered from
the same problems. There was some duplication of entries. There were
inadequate
identifying details in some cases.
[25] Of the 12 objectors resident within a one kilometre radius,
all but four withdrew their objections prior to hearing.
Of those four, only
one appeared at the hearing. But he ran the off-licence across the road, by the
Cloverlea Tavern. His objections
were largely discounted as tainted by concern
for his business.11
[26] The respondent accepted that the ten objectors residing within a one
to two kilometre radius qualified as having a greater
interest than the public
generally. Of that group, only four appeared at the hearing, including Mr
Utikere.
[27] I would not go so far as the Authority which
said:
11 SL Act, s 35(2).
If objectors fail to appear it is likely that their objection will have no
value.
There is no reason why an objector could not make a cogent, self-sustaining
written objection. It would carry some weight. But its
weight may tend to be
diminished if the objector is not available to give evidence at the hearing and
be questioned.
[28] I turn now to the substance of the objections. The objections were
largely dismissed because they did not address matters
relevant to the criteria
set out in s 35(1). The objections can be summarised as follows:
(a) grant would increase alcohol abuse and related crime; (b) there are already sufficient off-licences in the area;
(c) grant would increase traffic at the nearby intersection;
(d) grant would increase problems with intoxicated people and litter
experienced by neighbouring homes and schools; and
(e) DSL failed to comply with the notice requirements of the SL
Act.
[29] The Authority correctly dismissed objections (b)-(e). Objection (b) cannot be the basis of an objection because when it passed the SL Act, Parliament intentionally did away with the previous regime of quantitative licensing.12 Objection (c) is directed at matters covered by the RM Act. In any case the council has certified that the proposed use of the site meets the requirements of that Act. More importantly, neither objection (b) nor (c) is directed at the matters listed in s 35(1) of the Act.
Therefore neither are valid objections: s 32(3). Objection (d) has some relevance to conditions (such as limited opening hours) that should be imposed to take account of neighbouring land use,13 and thus is directed at matters listed in s 35(1). However it is a matter that required specific, compelling evidence to be given at the hearing to have any real weight. No such evidence was forthcoming. The Authority recorded
that there was no challenge to the opening hours sought. As mentioned
above,
13 SL Act, s 37(5).
objection (e) was properly dismissed by the Authority in its decision and is
not pursued on appeal.
[30] I have not forgotten objection (a). I have left it until last
because it is at the heart of Mr Utikere’s appeal.
The Authority
described objection (a) by reference to the appellant’s
objection:
The concerns [Mr Utikere] raised reflect those of other objectors; the
increased availability of low cost alcohol in a low socio-economic
area, the
density of outlets in the area, a high visibility location and the negative
effects on children.
[31] The Authority considered that it did not have jurisdiction
to consider objections based on such matters. Even
if it did, there was
insufficient evidence to link them to any forecast increase in alcohol abuse and
related crime. The Authority
said:
When considering the legal criteria it is evident that very few of the
concerns raised by the objectors are matters that we can consider.
There is no
causal nexus between the establishment of a bottle store by this applicant in
these premises and the perceived adverse
social effects suggested by the
objectors.
[32] Evidence of a causal nexus between granting the licence and liquor
abuse would:
... usually come from the reports and evidence of the Police and Inspectors.
In this case there was none. Most notably the Police
did not oppose the
application and did not appear at the hearing. The Inspector did not take an
active part in the proceedings,
her report being relied on. She had not been
prepared to accept the suggestion that the establishment of an off-licence will
automatically
lead to an increase in liquor abuse or disorderly
behaviour.
[33] Finally, the Authority concluded the applicant was suitable, and the opening hours and supervised area designation were appropriate. Consistent with the purpose of the SL Act, granting the licence would not increase liquor abuse. The Authority visited the proposed site, and two other Big Barrel stores. The Authority described them as “reasonably upmarket” with limited advertising outside. It granted the licence.
Issues on appeal
[34] Mr Utikere filed points on appeal that identified 11 alleged errors
of law. In the course of written submissions (initial
and revised versions),
those 11 points were distilled down to three essential issues:
(a) Issue 1: Did the Authority err in law in dismissing as irrelevant,
and beyond scope of objection under s 35(1)(b) (days
and hours of operation),
objections and evidence on susceptibility factors and risk drivers of
proliferation?
(b) Issue 2: Did the Authority err in law in dismissing as irrelevant
and beyond scope of objection, under s 35(1)(a) (suitability
of the applicant),
objections and evidence on susceptibility factors and risk drivers of
proliferation?
(c) Issue 3: Did the Authority err in law in holding “there is
no causal nexus between the establishment of a bottle
store by this applicant in
these premises and the perceived adverse social effects suggested by the
objectors”?
Issue 1: Did the Authority err in law in dismissing as irrelevant, and
beyond scope of objection under s 35(1)(b) (days and hours
of operation),
objections and evidence on susceptibility factors and risk drivers of
proliferation?
Submissions
[35] In his notice of appeal, Mr Utikere submitted there were two matters raised in objections relevant to s 35(1)(b). That of course is concerned with proposed days and hours of operation. First, proliferation issues. For Mr Utikere, Mr John Maassen submitted that granting another off-licence will increase competition between outlets in the area for custom. That will result in increased advertising of alcohol and reduced pricing at outlets in that community. And that in turn will lead to increased consumption of alcohol.
[36] Second, susceptibility issues. I have teased the following
propositions out of the appellant’s submissions: Takaro
and Highbury are
highly deprived communities; highly deprived communities are more
vulnerable to liquor abuse; there are
a number of schools near the
proposed location; and schoolchildren exposed to liquor advertising and liquor
abuse are more likely
to abuse alcohol.
[37] Mr Maassen submits that the Authority failed to recognise
that matters relating to proliferation and susceptibility
were relevant to
appropriate hours and days of operation. The Authority should consider the
impact of trading hours and days on
existing and potential liquor abuse in the
community served by the proposed off-licence.
Discussion
[38] The Authority adopted Heath J’s framework for consideration of
off-licence applications as set out in Otara-Papatoetoe Local Board v Joban
Enterprises Ltd:14
... the Authority is required to undertake an evaluative exercise... An
appropriate framework would involve (in no particular order)
consideration
of:
(a) The criteria set out in s 35(1);
(b) The reports presented by the Police and the inspector. Such
reports should be directed to both the s 35(1) criteria and
the extent to which
the grant of an application might offend against the object of the Act;
and
(c) Public objections that are directed to the s 35(1)
criteria.
Having considered all of that information, the Authority must stand back and
determine whether the application should be granted (whether
on conditions or
not) or refused. This step requires the Authority to form a view on whether
there is any evidence to suggest that
granting the application will contrary to
s 4(1), increase the risk of alcohol abuse. While a causal nexus is required
between such
evidence and the relevant risk, it is unnecessary to qualify the
nature of the link by reference to such words as “powerful”
or
“direct”.
[39] As Heath J made clear, objections must be directed to the matters in s 35(1). Unlike reports from the police and inspector, objectors cannot object on broader
grounds than s 35(1).
[40] I find here that Mr Utikere is attempting to use s
35(1)(b) as a Trojan horse to justify complete rejection of the application.
Objections relying on that provision may ask that opening days and hours be
restricted, to mitigate adverse affects. The objection
and evidence must
however address appropriate tailoring of operating hours. The provision does
not contemplate an argument
that the licensee’s opening hours be
restricted to zero, because of wider social policy issues. That is
a submission
that the licence not be granted at all, which Parliament did not
intend to be addressed under that paragraph.
[41] I accept that the adjacency of schools could be relevant to s
35(1)(b). For instance an objection might legitimately submit
that the
premises should be closed from 2.45pm-3.15pm while pupils are leaving nearby
schools.15 Or that there should be controls on advertising outside
the store because pupils regularly walk past it. I express no view on whether
such objections would succeed. There are no secondary schools in that area.
But an objection formed in that way is permissible.
[42] Here, none of the objectors argued that school-related
considerations meant that the premises’ opening hours should
be
restricted. The Authority noted this, saying “there was no challenge by
any party to the hours”.16 Rather, objectors said the
adjacency of schools meant no licence should be granted at all. For instance in
his objection Mr Utikere
said:
The proposed premises are located in a highly visible location,
where young children travel to a number of educational
institutions in the
area, whether by car or indeed by foot. I object to the over-emphasising
nature, regarding alcohol, this would
provide to such youngsters.
In his affidavit Mr Utikere says that his evidence was very rushed because the Authority was short on time. He did however summarise his main points. Nowhere does he suggest that opening hours be adjusted or reduced. Rather his point was that
the harm to schoolchildren would arise simply from the premises being
established.
15 For example see the conditions in Nishchay’s Enterprises Ltd [2013] NZARLA PH 837 at [14]–
[15].
16 IS Dhillon and Sons Ltd [2013] NZARLA PH 256 at [53].
[43] An objection that the premises should not open at all is not an
objection to opening hours. It does not fall within s 35(1)(b).
That limited
consideration is not a pretext generally for objectors to advance a case that an
area does not need, or should not
have, further off-licences. The Authority is
entitled to reach that view, having regard to the statutory objective in s 4.
But
objectors may not nudge it in that direction by giving evidence on wider
social considerations, under the guise of the explicitly
limited s 35(1)
criteria. That constraint doubtless explains the relaxation under the new
statutory regime. But I am here dealing
with the old.
[44] Accordingly the Authority, although brief in its reasons, committed
no error of law when it dismissed objections, based on
proliferation and
susceptibility, to the effect that the licence should not be granted at
all.
Conclusion
[45] The answer to Issue 1 is “No”.
Issue 2: Did the Authority err in law in dismissing as irrelevant and
beyond scope of objection under s 35(1)(a) (suitability of the
applicant),
objections and evidence on susceptibility factors and risk drivers of
proliferation?
Submissions
[46] Mr Maassen submits that the proliferation and susceptibility
objections set out above are relevant also to s 35(1)(a) –
suitability of
the applicant – and thus pass through the s 32(3) jurisdictional gateway.
In reliance on Otara-Papatoetoe Local Board v Joban Enterprises
Ltd,17 he argues that the applicant’s awareness of the risk
and the sensitivity of the catchment, combined with the applicant’s
willingness to volunteer an undertaking on an Augier basis in order to
manage those matters, go to demonstrate lack of
suitability.18
[47] Mr Maassen also submits that suitability is to be measured in part against the applicant’s intended method of selling liquor, and whether that would defeat the
object of the SL Act “having regard to the community-liquor
context”.
17 Otara-Papatoetoe Local Board v Joban Enterprises Ltd [2012] NZHC 1406, [2012] NZAR 717.
18 Augier v Secretary of State for the Environment (1978) 38 P&CR 219 (QB).
Discussion
[48] When assessing suitability, an applicant’s proposals as to how
the business is to operate are relevant, but focusing
only on future conduct
amounts to an error of law.19 The applicant’s past conduct is
also relevant.20
[49] In Police v Casino Bar (No 3) Ltd Dobson J set out a list of
considerations likely to be relevant to the assessment of suitability in
relation to an on-licence application.21 Similar considerations
are likely to be relevant to an off-licence application:
(a) previous convictions, especially those involving liquor or
those raising questions as to honesty or propensity
for violence;
(b) character, reputation;
(c) matters raised in reports filed under s [33]; (d) previous unlawful operation of premises;
(e) any of the above in relation to a person other than the applicant
who is involved in the application (as a director, manager,
etc) or is intended
to be employed by the applicant;
(f) breach of an undertaking; and
(g) misleading information in an application and/or misleading public
notice.
[50] The appellant cites a passage from the Joban decision in support of the proposition that past attempts to manage the risk of alcohol abuse in the community and the “sensitivity of the catchment” are matters going to suitability.22 But I do not read that passage as anything other than part of an orthodox assessment of the suitability of an applicant. The applicant’s past conduct is examined: no failed controlled purchase operations, employing only those with managers’ certificates,
and preventing entry of schoolchildren. The manner in which it intends
to run the
19 Police v Casino Bar (No 3) Ltd [2013] NZHC 44, [2013] NZAR 267 at [30].
20 Re Sheard [1996] 1 NZLR 751 (HC) at 755.
21 Police v Casino Bar (No 3) Ltd [2013] NZHC 44, [2013] NZAR 267 at [34].
premises is also examined: checking identification,
dispersing persons drinking nearby, trespassing intoxicated persons and not
selling
single serves.
[51] If Mr Maassen’s submission is that this passage is authority
that a licensee’s past compliance with his or her
licence conditions is
relevant to suitability, he is correct. But Mr Utikere’s objections do
not impugn DSL’s past compliance.
Nor do they impugn the manner in which
DSL intends to run the premises.
[52] The question is whether objections (such as the appellant’s)
that impugn matters apart from the applicant’s own
past and probable
future conduct are relevant to suitability.
[53] Mr Sherriff very properly alerted me to the recent Authority
decision of Nishchay’s Enterprises Ltd which might offer some
support for Mr Maassen’s argument.23 In that decision, the
Authority held:24
In this case, the suitability of the applicant needs to be determined in the
context of the location of the proposed premises...
In this context, any
applicant would face real difficulties in establishing its
suitability.
The Authority then cited Pankhurst J’s decision in Page v Police
in support, in which he said:25
... suitability is not established in a vacuum but in the context of the
particular case: for example the place, the intended business
(here in a
difficult central city location), the nature of the business itself, the hours
of operation and the intended activities,
provide the basis for the assessment
of the individual...
[54] Nishchay, it should be noted, is a case on very
special facts, involving previous deeply unsatisfactory operating
experience
of an off-licence in that location. The attempt to re-establish
it, then, certainly offered some relevant insight into the
suitability of the
applicant the next time around.
[55] The analysis in Nishchay, quoted above, is orthodox.
Suitability is not an abstract assessment. But the concern of s 35(1)(a) is
with the suitability
of the
23 Nishchay’s Enterprises Ltd [2013] NZARLA PH 837.
24 At [52].
25 Page v Police HC Christchurch AP84/98, 24 July 1998.
applicant. This word is used in contradistinction to “application”, which appears just a few words earlier. The provision does not permit an objector to instead focus on the conceptual desirability of a further off-licence in that location. That, of course, is something the Authority may do for itself, given its wider remit. The Court of Appeal has emphasised the Authority must consider the purpose of the Act
when considering an application for a licence.26 The High Court
has emphasised
s 35 criteria must “be read in light of the statutory
object”.27 But s 32(3) makes clear that objectors may not use
s 35(1)(a), any more than they may use s 35(1)(b), as a pretext for wider social
policy considerations not directly related to the express subject matter of
those provisions.
[56] Accordingly, I am not persuaded that the Authority committed an
error of law in the terms set out in Issue 2.
Conclusion
[57] The answer to Issue 2 is “No”.
Issue 3: Did the Authority err in law in holding “there is no
causal nexus between the establishment of a bottle store by this
applicant in
these premises and the perceived adverse social effects suggested by the
objectors”?
Submissions
[58] Mr Maassen submits that the Authority failed to give adequate reasons for finding that there was no causal nexus between granting the licence and the liquor abuse the appellant forecast occurring. He submits the objectors raised two relevant consequences of granting the licence. First, proliferation.28 The causal link made was that granting a licence increases competition, competition leads to increased advertising and reduced pricing, that leads to increased consumption, which leads to
alcohol abuse. Secondly, susceptibility and vulnerability. Takaro and
Highbury are
26 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 564, [2010] NZAR 152 at
[67].
28 See above at [35].
deprived communities and therefore more vulnerable to liquor abuse. And
that nearby schoolchildren exposed to liquor advertising
are more likely to
abuse liquor.
[59] In response, Mr Sherriff submits that the Authority was simply
referring to the obvious deficiency in the appellant’s
evidence. The
appellant did not provide any admissible evidence capable of supporting
the conclusion that granting the
license would increase liquor
abuse.
Discussion
[60] The correct approach to be taken under the SL Act is described by
Heath J in Joban in the passage cited at [38] above. The Authority
expressly referred to that passage, quoting it in its decision.
[61] The Authority’s relevant analysis is then set out
succinctly, in two paragraphs:
[51] Section 32(3) of the Act requires that objections must be confined
to the criteria specified in s 35(1) of the Act; When
considering the legal
criteria it is evident that very few of the concerns raised by the objectors are
matters that we can consider.
There is no causal nexus between the
establishment of a bottle store by this applicant in these premises and the
perceived adverse
social effects suggested by the objectors.
[52] Evidence relating to the risk of liquor abuse will usually come
from the reports and evidence of the Police and Inspectors.
In this case there
was none. Most notably the Police did not oppose the application and did not
appear at the hearing. The Inspector
did not take an active part in the
proceedings, her report being relied on. She had not been prepared to accept
the suggestion that
the establishment of an off-licence will automatically lead
to an increase in liquor abuse or disorderly behaviour.
[62] In those terms, the Authority’s analysis is self-explanatory and (in my view) unobjectionable. The law did not permit the objectors to advance evidence not directed to the limited-scope s 35(1) criteria. The inspector and police could, but did not. They could be questioned on whether granting the licence (or aspects of the licence) would be contrary to s 4(1), by increasing the risk of liquor abuse in the
community. The objectors had a right to question them.29
It is clear here that the
29 SL Act, s 106(4).
inspector was questioned, but did not accept the objectors’
contentions. Unhelpfully, the police were not present to be questioned
at
all.
[63] In addition, there was no cogent evidence that the granting of a
licence to the applicant to establish its new store would
necessarily result in
an increase in the supply of liquor to the public in absolute terms. Let alone
an adverse increase in the
abuse of liquor. As Mr Sherriff put it, dilution or
diminution of sales at other outlets, resulting in the same total volume sold,
was an equally (if not more) likely outcome. It followed that there was no
evidence that more liquor in absolute terms would be consumed
by the public
either generally, or specifically in the two suburbs most concerned. The
contentions restated by Mr Maassen were inferential.
Certainly they were
inferences that might be drawn. But they were not compelling, or even
necessarily probable. Significantly,
Mr Maassen could not point to evidence
demonstrative of a probability of a greater degree of liquor abuse as a result
of the granting
of this licence.
[64] Moreover, and as I have already said, it is not the scheme of the SL Act to limit the proliferation of outlets. As the Court of Appeal has recognised (in Meads amongst other decisions), the assumption underlying the SL Act is that increased availability (through the granting of licences) does not lead to increased abuse per se. Parliament certainly anticipated a greater proliferation of outlets as a result of the liberalisation of grant under the SL Act. It will be remembered that that Act introduced, for the first time, the ability of supermarkets to stock and sell liquor. It should also be noted that licences granted could also more liberally be taken away. As Mr Sherriff put it, “easy to get, and easy to lose”. The point was adverted to by the Court of Appeal in another decision, Christchurch Licensing Agency v Karara
Holdings Ltd:30
There is an opportunity for the public to object to the grant of the
application on the ground of unsuitability of the applicant.
Importantly,
however, under the Act there are no restrictions of an economic kind on the
grant of licences by reference to tests
of “need or desirability”
for new licensed premises. These were a feature of previous legislation. It
follows that
licences are more readily available under the Act than they were
under the previous licensing regimes to those who established their
personal
suitability, and that
30 Christchurch Licensing Agency v Karara Holdings Ltd [2003] NZCA 96; [2003] NZAR 752 (CA) at [27].
of their premises, for the purposes for which they apply to be licensed ...
In essence, the 1989 Act provides a more liberal licensing
system.
[65] In this case, the objectors could not, and did not, advance cogent
evidence of an increased measure of liquor abuse as a
result of the granting of
a licence. They could, perhaps, have done so through questioning of the
inspector (and police officer,
had he attended). But that evidence was not
forthcoming from those sources. It followed that the Authority had no basis on
which
it could reach the conclusion sought by the objectors. It did not,
therefore, err in holding that there was no causal nexus between
the grant of
the licence and the perceived adverse social effects suggested by the
objectors.
Conclusion
[66] The answer to Issue 3 is “No”.
Result
[67] The appeal is dismissed.
[68] If costs are in issue, memoranda may be
filed.
Stephen Kós J
Solicitors:
Cooper Rapley, Palmerston North for Appellant
Buddle Findlay, Wellington for Respondent
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