Basix Bar & Brasserie Limited, re [2001] NZLLA 319 (2 August 2001)

Last Updated: 18 March 2010

Decision No. PH 319/2001

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by BASIX BAR & BRASSERIE LIMITED pursuant to section 18 of the Act for renewal and variation of an on-licence in respect of premises situated at 16 Shamrock Drive, Kumeu, Rodney District, known as "Basix Bar and Brasserie"

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at AUCKLAND on 26 July 2001

APPEARANCES

Mr G R Mitchison and Mr D R Johns for the applicant
Constable A R Gentry – New Zealand Police – in opposition
Mrs S Markovina – Rodney District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by Basix Bar & Brasserie Limited for renewal and variation of its on-licence in respect of premises situated at 16 Shamrock Drive, Kumeu, known as "Basix Bar and Brasserie".

[2] There were no objections from the public. The only objection was from the Police who were opposed to the extension of the hours.

[3] The hours of the existing on-licence are:

Monday to Saturday 11.00 am to 1.00 am the following day

Sunday, Good Friday and Christmas Day 11.00 am to 1.00 am the following day to any person present on the premises for dining.

[4] The applicant proposes the following variation to the trading hours:

Sunday to Thursday 11.00 am to 1.00 am the following day

Friday and Saturday 11.00 am to 3.00 am the following day

[5] The proposed hours are outside the Rodney District Council liquor policy which has a 1.00 am closing time.

Background

[6] Messrs Mitchison and Johns both gave evidence for the applicant.

[7] They explained that they saw a niche in the market for a business with the strong emphasis on live entertainment from bands.

[8] The premises opened in January 2000. They have found that people came to their premises to party. Many do not take kindly to being ushered out the door at 1.00 am. They said it is a social phenomenon that most people now expect to start later and be able to continue to 3.00 am. Because of that expectation and because of the many requests they have received, Messrs Mitchison and Johns have sought an extra two hours for Friday and Saturday night.

[9] In support of their application for later hours, they pointed to the eight special licences that have been granted over the last eighteen months to operate to 5.00 am. On every occasion the evening has passed without incident and the Police have never had to attend the premises.

[10] As further support of their application, they produced a letter from Christine Rose, the Deputy Mayor for Rodney District Council. Mrs Rose wrote that she supported the application. She said that "local people do desire the opportunity to drink after 1.00 am." She went on to say:

"At the moment many locals travel into the city to drink and party after Basix closes. Extending Basix' hours will allow these people to stay locally meaning money remains in the area, without the need for these people to travel elsewhere.

Keeping drinkers local should help with host responsibilities, ensuring there is no more need to drink-drive into town, so that local taxi services can cater for patrons' transport home."

[11] Mr Johns who is a shareholder in the business gave evidence. He emphasised that all that was being sought was two hours extension on Saturday and Sunday nights.

[12] Mr Johns first dealt with the two issues raised by Mrs Markovina in her report. They were, that the company had not complied with the requirements of section 225 of the Sale of Liquor Act, and the application for extension of hours was contrary to Council policy.

[13] Mr Johns said that when they were applying for a licence, they learnt that one of the directors of the company was unsuitable. The company would not get a licence as long as that director was involved. They were advised that the quickest way to resolve the problem was to re-register the company without the "unsuitable" director. That step was taken. However, in the process, their accountant sold his business and moved to the South Island. It took some time for the directors of the company to "clean up [their] mess". Consequently, the required notifications were not carried out as promptly as they should have been. Those matters have now been attended to.

[14] As regards to the Council policy on hours for licensed premises, Mr Johns said the social trend is that people are going out later and staying out later. He said we are suggesting that the policy should reflect that.

[15] Mrs Markovina advised the Authority the Council policy was being reviewed after consultation with the community. A forum is to be held on 7 August 2001 and a decision was expected to be available in late October this year. She advised that the current policy was also the result of consultation with the community.

[16] Mr Johns next referred to the eight special licences that had been issued to the business. They had been operated without any complaint or problems. Each licence had been connected with a particular band playing at the premises. He said that if they want to carry on and continue to attract good bands which have a particular following, a special licence was needed. The catch was that the bands were not considered "special" and therefore it would not be possible to get a special licence on a regular basis. He said they were "caught between a rock and a hard place."

[17] Mr Johns also emphasised that security staff were always on hand. The company policy was that if there were 50 or more people on the premises, there was always two or more security personnel. On big nights they employed up to four security personnel.

[18] The Police were opposed to the licence extending past 1.00 am on the grounds that it would set a dangerous precedent. Constable Gentry said the Wade Hotel had had its application for extended hours declined. The Police report also referred to neighbouring premises having ongoing problems with people urinating in doorways and breaking bottles.

[19] Mr Johns disputed the claims regarding neighbours having ongoing problems. He said they have a good rapport with the Police, District Licensing Agency and their neighbours. He produced ten signed statements from neighbouring businesses saying there was no objection to Basix Bar and Brasserie obtaining an extension to its hours.

[20] Constable Gentry said that the Police objection to extended hours was based upon the problems associated with migratory drinkers in West Auckland area. He said Kumeu is unique. Travelling distances between hotels are 20 – 30 kilometres. At present all hotels in the area have 1.00 am closing times. If Basix Bar and Brasserie was granted an extra two hours, a lot of people will travel to Basix Bar and Brasserie for the last two hours. At present the Police have been able "to keep a relatively good lid on drinking and driving" with limited staff. He said migratory drinkers used to be a problem between Helensville and Kumeu. State Highway 16 was one of the worst roads for drinking and driving. He said availability of taxis in the area was not an answer. People would not use them because of the distances they had to travel and the associated costs.

Conclusion

[21] There have been two issues raised in this case. The first is the failure to notify the change of shareholding and directorships in accordance with section 225 of the Act. This offence carries a fine of $10,000. Mr Johns has explained the background that led to the breach of the section. Basically, the company was in the hands of its accountant who apparently and without warning sold the business and relocated to the South Island. That left the company to clean up the mess with a new accountant. The matter has now been rectified. In the event, the company has taken reasonable and proper steps to ensure the section was complied with.

[22] The second issue is whether the hours on Friday and Saturday should be extended from 1.00 am to 3.00 am the following day.

[23] There were no objections from the public and the applicant has supplied statements from neighbouring businesses in support of its application.

[24] The Inspector in her report noted that the extension was outside Council policy and recommended that the application be approved for existing hours only.

[25] The Police oppose the extension also on the grounds that it was outside Council policy.

[26] The Inspector has confirmed that the current policy was a result of extensive consultation with the public and licensees.

[27] We have said previously in Yvonne Patricia Parker (LLA decision 1831/97):

"The Authority is also on record as having regard to Local Authority policies in relation to trading hours for licensed premises, without being bound by them. Greater weight is placed on an agency policy which has been arrived at after consultation with the community and existing licensees."

[28] This view was supported by Fisher J in H L Walker & W J Walker v NZ Police (High Court, Wellington, AP 87/01, 31 May 2001) where His Honour said at paragraph 33:

"It would of course be wrong for the Authority to fetter its discretion by treating the content of the policy as a mandatory requirement or rule. However, it could not be suggested that the Policies are irrelevant on an application of this nature. I have already held that the matters expressly referred to in section 22 are not exclusive. Section 4 requires reference to the object of reducing liquor abuse. The views of local residents are likely to be helpful in deciding how that object can best be achieved and balanced against the desire for access to liquor at appropriate circumstances."

[29] The Inspector has said that a public forum is to be held on 7 August 2001 to determine whether the current policy should be changed.

[30] We briefly adjourned the hearing to give the applicant an opportunity to consider its position on light of that situation as to whether it wanted to wait until the results of the forum were known. It may be some time before those results are promulgated.

[31] The applicant chose to continue with the hearing and await our decision.

[32] Constable Gentry's evidence gave us an insight into the problems that may arise with migratory drinkers if the hours for Basix Bar and Brasserie are extended to 3.00 am. Migratory drinkers was an issue that arose in H L Walker & W J Walker v Police where Fisher J said at paragraph 40:

"With or without any evidence this was a factor which the Authority was able to take into account as a matter of inference, particularly given the expertise of the Authority in such matters. I respectfully agree with the comments of McGechan J in Buzz & Bear Ltd v Woodroffe [1996] NZAR 404 (HC) at p 411 where he said:

'There was evidence before the Authority of concerns on the part of the Inspector personally (and the report is his own function), and more significantly on the part of the police and local branch of the HANZ. There was an inference available, as a matter of common sense, that different closing times can lead to migratory drinkers, traipsing from one on-licence to another, with the trail of traffic, safety and nuisance problems which result (and have resulted for centuries).'"

[33] We are satisfied that the nature of Kumeu and the surrounding district and the distances between the licensed premises is a matter of real concern. If one licensed premises was permitted to have extended hours and others were not, it would cause what McGechan J described as "a trail of traffic, safety and nuisance problems".

[34] Constable Gentry also, apologetically, referred to the lack of Police staff available and said "he realised this was not a criterion under section 13.

[35] However, the Authority corrected Constable Gentry on that point by referring to Fisher J in H J Walker & W J Walker v Police where His Honour at paragraph 46 said:

"On that topic the Authority went so far as to say that lack of police resources was not a relevant factor. I accept Mr Burston's submission that that was going too far. As he pointed out, Part 8 of the Sale of Liquor Act affords the police a particular role with respect to offences and enforcement and that in considering the location and circumstances relating to a particular environment would not seem entirely irrelevant to consider what police resources might be available there. The weight to be attached to that consideration is, of course, another matter. To some degree there is a chicken and egg question. Particular licensing hours could well influence resources which the police are obliged to provide, just as the licensing hours might be influenced by police availability. However in principle it could not possibly be the case that no matter how remote and unpopulated an area might be, and no matter how uneconomic it might be to provide police there, the Authority could ignore the unavailability of police to respond to the probable consequence of extending licensing hours."

[36] Therefore, we cannot ignore the location of Kumeu, the potential problems associated with migratory drinkers, and the lack of Police resources in that environment. Likewise, we cannot ignore a policy which has arisen from proper public consultation.

[37] Accordingly, the application for an extension of two hours on Saturday and Sunday is declined. The application for renewal is granted for the existing hours only for three years from 7 January 2001.

DATED at WELLINGTON this day of August 2001

Judge E W Unwin Mr J C Crookston
Chairman Member

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