Baxter - Kingston Corner Cafe [2000] NZLLA 910 (20 June 2000)

Last Updated: 16 February 2012

Decision No. PH 910 – 911/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by REX RICHARD BAXTER for on and off-licences pursuant to ss.7 and 12 of the Act in respect of premises situated at 1 - 5 Kent Street, Kingston, Queenstown-Lakes District, known as "Kingston Corner Café"

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Mr R J S Munro
Mr J W Thompson

HEARING at QUEENSTOWN on 29 March 2000

APPEARANCES

Mr S H N Stamers-Smith – for applicant
Mr A G Feaver – Objector
Mr N J Ramsay – Objector
Detective Sergeant P D O'Donovan – NZ Police – to assist
Ms T J Fleming – Queenstown-Lakes District Licensing Agency Inspector – to assist

DECISION

This is an application by Rex Richard Baxter for on and off-licences in respect of premises situated at 1 – 5 Kent Street, Kingston, Queenstown-Lakes District, known as "Kingston Corner Café". Objections were received and the matter set down for public hearing.

Mr S Stamers-Smith told the Authority that his client intended to convert an existing restaurant to a tavern. Mr Baxter already holds an on-licence for a restaurant on the site. The premises are undergoing structural changes. A wide range of other goods including nappies and dried food are also sold. The main issue is hours of trading. Mr Stamers-Smith highlighted the differences between the hours sought by the applicant and the recommendations of the Police and the District Licensing Agency Inspector. He also pointed out that nearby licensed premises the Kingston Tavern and the “Kingston Corner” (a restaurant) already enjoy trading hours until 2.30 am.

Mr R R Baxter who described himself as a restaurateur, said he had purchased the property with his wife in 1997 as an investment. At that time he had no intention of running the business. Following difficulties with the tenant Mr Baxter said that he had “taken over” on 3 August 1998. One of the changes he sought to introduce required planning consent for the proposed tavern and off-licensed premises. That was duly obtained but when public notification was given of these on and off-licence applications five objections were filed.

Mr Baxter seeks an on-licence allowing trading from Monday to Sunday 11.00 am to 1.30 am the following day. An off-licence is also sought to authorise the sale of liquor from Monday to Sunday 9.00 am to 11.00 pm from the bottlestore. He referred to letters from customers included with the application supporting the business, and the proposed "upgrading (of) their liquor licence" from patrons living in Gore, Bluff, and Kingston who wrote in support.

Anticipating the thrust of objectors' evidence Mr Baxter said that the Queenstown-Lakes District Council is satisfied with the noise management arrangements proposed:

"In essence we said that no steps need be taken as we were planning no increase in noise over and above that already happening with the operation of the store, takeaway food bar, and restaurant. You will see that QLDC requires as a planning condition that there be no live entertainment and that music / entertainment shall be strictly background. We accept this condition ..."

Mr Baxter's proposal is for a "small roadside restaurant/tavern dealing mostly with locals in the evening, or patrons at the camping ground or motels next to the Feavers" (who are objectors). The dining room is to be undesignated, and the immediate bar area and bottlestore to have a supervised designation.

Mr Baxter noted that the Kingston Tavern operates until 2.30 am and has a residential house closer to it than his premises. Restricted hours would impact negatively on the business. He described a suggestion of closure at 11.00 pm as "unfair and ruinous". He said:

"Given our long southern days in the summer 11.00 pm is a relatively early hour for holiday-makers. In August last year we operated on 15 days after 11.00 pm. In January we operated all 31 days after 11.00 pm, total of 46 days. In those 46 days of which 16 were operated to 2.30 am we had one noise or behaviour complaint."

Mr Baxter produced sketches indicating the layout proposed. A plan was subsequently requested by the Authority. Our Secretary received it on 7 June 2000.

Objections

Mr A G Feaver appeared as an objector to the on-licence. Mr Feaver has no objection to the granting of an off-licence. He told the Authority that his residence is south of the licensed premises. To the west of his home is a motel and on the south-east side a camping ground. He said that the camp had rules requiring a quiet period between 10.30 pm and 7.00 am daily which were very satisfactorily monitored by the camp owners. In view of the range of potential problems from the on-licence and the non-notified status of the resource consent application, he objected to the applicant's proposal.

In answer to a question from Mr Stamers-Smith he agreed that he had made no submission on the Queenstown-Lakes District Plan when public consultation had been sought.

Mr M J Ramsay objected to the off-licence on the grounds of noise, parking and valuation of property. In answer to a question from the Authority Mr Ramsay indicated that there had been no problems with the restaurant on-licence. Nevertheless he foresaw problems if an on-licence with tavern conditions is granted.

The Inspector’s and Police Position

Ms T J Fleming, a Licensing Inspector employed by Civic Corporation Limited, which acts for the Queenstown-Lakes District Council, told the Authority that the premises were currently operating pursuant to an on-licence with restaurant conditions between 7.00 am and 2.30 am daily. She said that of the five written objections (including those of Mr Feaver and Mr Ramsay) none disputed the applicant's suitability to hold a licence. The issue is solely hours of operation.

Ms Fleming said that in reporting on the application another Inspector recommended lesser hours than those applied for. They are:

"Monday to Thursday 11.00 am to 11.00 pm
Friday and Saturday 11.00 am to 1.00 am the following day
Sunday, Good Friday and Christmas Day 11.00 am to 11.00 pm"

Ms Fleming supported that recommendation but also recommended that the outdoor area be licensed from 11.00 am to 10.00 pm only in keeping with other licences in the district with outdoor areas.

She reported that Mr Baxter had applied for a General Manager's Certificate.

Detective Sergeant P D O'Donovan said that there had been no problems in the premises.

Conclusion and Reasons

Off-licence

The bottlestore off-licence application is granted with the hours sought (as amended) Monday to Sunday 9.00 am to 11.00 pm.

The licence may issue immediately following the expiry of 20 working days from the date of this decision. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal.

On-licence

In considering the application for an on-licence the Authority is directed by s.13(1) to 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 or conveyance, 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) The applicant's proposals relating to:

(i) The sale and supply of non-alcoholic refreshments and food; and
(ii) The sale and supply of low-alcohol beverages; and

(iii) The provision of assistance with or information about alternative forms of transport from the licensed premises:

(f) Whether the applicant is engaged or proposed to engage, in –
(i) The sale or supply of any other goods besides liquor and food; or

(ii) The provision of any services other than those directly related to the sale or supply of liquor and food, -

and, if so, the nature of those goods or services:

(g) Any matters dealt with in any report made under s.11 of this Act."

The applicant is clearly suitable. The main issue for our consideration is the hours during which the sale and supply of liquor should be authorised. A lengthy series of temporary authority orders have allowed sale and supply for the dining purpose until 2.30 am daily. The applicant now seeks to trade until 1.30 am daily.

The resource management certificate granted by the Queenstown-Lakes District on 13 July 1999 certifies that the use of the building by Mr Baxter meets the requirements of the Resource Management Act and is subject to conditions of Resource Management Act Consent No. RM 980496. Those conditions include:

"There shall be no live entertainment within or outside the subject building."

"Music/entertainment shall be strictly background, which will allow for audible conversation for patrons and other users of the establishment."

"The four speakers (two x 10 watt and two x 20 watt speakers) specified shall be located and operated within the building and not placed outside this building."

Such conditions make it clear that noise is a potential problem.

Control of noise emission is a matter primarily for the local authority. Valid objections to an on-licence may only be made in relation to the matters specified in s.13(1)(a) to (g) above.

The non-notified resource consent states that:

"1. No persons were deemed to be adversely affected ... and

2. The adverse effect on the environment of the activity ... was considered to be minor ..."

The five written objections could suggest that that position may not be factually accurate although it has been “deemed” to be so by the officer granting the resource consent. As a matter of law, that is for the Queenstown-Lakes District Council and, on appeal or reference by the Environment Court. It is not a relevant consideration for this Authority.

Very properly, the Licensing Inspector has brought all these matters to our attention in the course of the public hearing.

The premises are located on an intersection adjacent to State Highway 6. There can be little doubt that such proximity to a State Highway in itself, produces noise. That noise differs to that arising from patrons coming and going from licensed premises, but noise is a resource management issue, controlled in the first instance by the Queenstown-Lakes District Council, rather than this Authority.

The nearby Kingston Tavern has "less residential dwellings in the immediate area" (from a report on the application made by Licensing Inspector D McMillan) but sales of liquor are authorised until 2.30 am the following day.

The Authority stated in K R and C R Burton et al (LLA 2020-2025/95) that closure at around 11.00 pm on weeknights and 12.00 midnight or 1.00 am the following day on Friday and Saturday nights will frequently be appropriate for a tavern where residential neighbours are located close to those licensed premises. As a generalisation and without wishing to fetter ourselves in any way, that remains the position although it was stated five years ago.

In each case the range of measures taken by the licensee to control and reduce noise and other annoying features to neighbours needs to be closely examined. If as a result of longer trading hours disturbance to neighbours arises, an application to vary, suspend or cancel a licence may be made immediately by an Inspector or the Police. There is thus a strong incentive on the licensee to keep "on side" with neighbours; public notification is required for any renewal of the licence. From 1 April 2000 details of the application must also be attached in a conspicuous place on or adjacent to the site. Complaints may be made at any time to the District Licensing Agency or to the Police.

In these circumstances we will accept the Inspector's recommendation limiting hours to 11.00 pm from Monday to Thursday and Sunday, but grant the applicant's request for Friday and Saturday evenings trading until 1.30 am the following day. In addition the outdoor deck areas will be included in the licensed premises. The hours of trading in that area will be limited to 11.00 am to 10.00 pm, as the Inspector recommends.

We also endorse the practical suggestion made in Mr McMillan's report when he noted that the applicant could:-

"... apply for (all) the hours sought in the (original) application at the time of renewal ..... if no noise complaints or problems have arisen on the premises ..... ".

In our view that suggestion has obvious merits. Regular consultation to keep the lines of communication open between parties by a responsible licensee is sound practice.

In all other respects we are satisfied as to the matters to which we must have regard as set out in s.13 of the Act and we grant the applicant an on-licence authorising the sale and supply of liquor for consumption on the premises, to any person present as set out in s.7 of the Act.

The licence may issue immediately following the expiry of 20 working days from the date of this decision. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal.

The applicant’s attention is drawn to s.25 of the Act obliging the holder of an on-licence to display:-

1. A sign attached to the exterior of the premises, so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor AND
   

2. A copy of the licence, and of the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through each principal entrance.

The licences will be subject to the following conditions:

On-licence

(a) The licensee must have available for consumption on the premises, at all times when the premises are open for the sale of liquor, a reasonable range of non-alcoholic and low-alcohol refreshments:

(b) No liquor is to be sold or supplied on Good Friday, Easter Sunday, Christmas Day or before 1.00 pm on ANZAC Day to any person other than persons who are present on the premises for the purpose of dining.

(c) Liquor may be sold only on the following days and during the following hours:

Inside the Premises

Sunday to Thursday 11.00 am to 11.00 pm; Friday and Saturday 11.00 am to 1.30 am the following day (11.00 am to 12.00 midnight on the Thursday before Good Friday, Easter Saturday, Christmas Eve, and the day before ANZAC Day) to any person who is present on the premises.

The Outdoor Deck Areas

Monday to Sunday 11.00 am to 10.00 pm.

(d) Food must be available for consumption on the premises as follows:
At all times when the premises are authorised to be open for the sale of liquor, food of a range and style similar to that shown on any menu submitted or a range of snack foods in the nature of pies, sandwiches, filled rolls, pizzas and the like, must be conveniently available for all patrons and the availability of those foodstuffs must be notified to them by appropriate notices throughout the premises.

(e) Each of the following parts of the premises is designated as a supervised area: Every bar.

(f) The licensee must ensure that signs are prominently displayed within the licensed premises detailing information regarding alternative forms of transport from the premises.

(g) The licensee must implement and maintain the steps proposed in the application for the licence aimed at promoting the responsible consumption of liquor.

(h) The licensee must ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited persons are observed and shall display appropriate signs adjacent to every point of sale detailing the statutory restriction on the supply of liquor to minors and the complete prohibition on sales to intoxicated persons.

Off-licence

(a) No liquor is to be sold or delivered on Good Friday, Easter Sunday, Christmas Day or before 1.00 pm on ANZAC Day.

(b) Liquor may be sold or delivered only on the following days and during the following hours:

From the bottle store

Monday to Sunday 9.00 am to 11.00 pm.

(c) The licensee must ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited persons are observed and must display appropriate signs adjacent to every point of sale detailing the statutory restriction on the supply of liquor to minors and the complete prohibition on sales to intoxicated persons.

THE LICENSED PREMISES

In terms of Regs. 7 and 10 of the Sale of Liquor Regulations 1990 the sale, supply, delivery or consumption of liquor is authorised in the premises generally. The premises, situated at 1-5 Kent Street, Kingston, Queenstown-Lakes District are more precisely identified in plans date stamped as received by the Liquor Licensing Authority on 30 August 1999 and 7 June 2000.

DATED at WELLINGTON this day of 2000

R J S Munro J W Thompson
Member Member

Kingston.doc(J9)