Pukekohe Rugby Football Club, re [2001] NZLLA 581 (19 December 2001)

Last Updated: 2 October 2010

Decision No. PH 581/2001

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by the PUKEKOHE RUGBY FOOTBALL CLUB INCORPORATED pursuant to s.64 of the Act for renewal of a club licence in respect of premises situated at Franklin Road, Pukekohe known as "Pukekohe Rugby Football Club"

BEFORE THE LIQUOR LICENSING AUTHORITY

Deputy Chairman: District Court Judge J P Gatley
Member: Mr J C Crookston

HEARING at PUKEKOHE on 15 November 2001

APPEARANCES

Mr P A Craighead for applicant

Sergeant R C Hutton – NZ Police – to assist

Mr S M Town – Franklin District Council – to assist

Mr T Long – Pukekohe District Licensing Agency Inspector – in opposition

Mr C B Duder – in opposition
Mr T J Kiely – in opposition

RESERVED DECISION OF THE AUTHORITY

[1] This is an application by Pukekohe Rugby Football Club Incorporated for renewal of a club licence in respect of premises situated at Franklin Road, Pukekohe, known as "Pukekohe Rugby Football Club" (the Club).
[2] The application was initially for a variation of hours and renewal. Following objections from neighbouring residents the Club withdrew its application for variation.
[3] The Club has been at its present location since 1981. It has held a liquor licence since1979. The original licence was replaced with a converted club licence in 1990. That licence was varied in 1992 and again 1997 to authorise more extensive hours.

[4] The existing hours are:

Monday to Thursday 6.00 pm to 10.30 pm

Friday 6.00 pm to 12.00 midnight

Saturday 2.00 pm to 12.00 midnight

Sundays and Public Holidays 2.00 pm to 9.30 pm.

[5] Neither the Police nor the Medical Officer of Health opposed the application.
[6] The District Licensing Agency Inspector in a carefully considered and balanced report has opposed the application on the ground that “the club has failed to be a good neighbour.” Mr Long acknowledges that the “Club conducts the sale of liquor in a responsible way.”
[7] Mr Edwards is the President of the Club. He said that the application attracted objections from four people who live in two houses in the immediate vicinity of the Club. Their objections were based upon noise made by Club members and visitors.
[8] Mr Edwards provided a potted history of the Club. He said in 1981 when the Club was looking to relocate its premises the Council suggested the Club’s present location. The area was to be a recreation area shared with other sports clubs.
[9] In 1981 when the Club built its premises the area was zoned rural or recreational. In 1983 the Council changed the zoning in the vicinity of the Club to residential. That zone also has associated noise level restrictions. Following that change of zone the objectors’ homes were built.
[10] Mr Edwards pointed out that not all of the Club’s neighbours object to the Club’s activities. He produced four letters of support from neighbours and a petition signed by thirty people.
[11] The Club provides sporting facilities for senior men and women players as well as junior boys. Subscriptions are kept to a level in keeping with an area that is generally less than affluent.
[12] Mr Edwards said sales of liquor from its bar play an important part in sustaining the financial viability of the Club. He produced figures that showed in the last three years there has been a significant decrease in bar sales. He said if the Club was to lose its licence senior players would be attracted to one of the six neighbouring clubs that do have bar facilities.
[13] Mr Edwards said that the Club has tried to be a good neighbour within its limited budget. He listed ten measures that the Club has taken to reduce noise levels for its neighbours. They include:

• The erection of bollards in the car park to keep out unwanted traffic.
  
• The planting of cypress trees as a soundproofing measure.
  
• Removing loose gravel from the car park.
  
• Fitting automatic door closures.
  
• Erecting a double shell in the premises where there are exterior doors.
  
• Erecting signs asking members to keep noise down.
  
• Reducing the number of functions held on the premises.
  
• Using Club officers and team coaches to control noise levels.
  

[14] Mr Edwards said that when finances permit the windows facing onto the Club car park which adjoins the objectors’ homes will be double glazed.
[15] Mr Lansdown is the Secretary/Manager of the Club. He has held that position for four years. Part of his duties is to run the bar. He has been in the liquor industry for 24 years. He has been the owner of two hotels and the Secretary/Manager of the Pukekohe Cosmopolitan Club for 20 years. He has never incurred a conviction under the Sale of Liquor Act.
[16] Mr Lansdown produced figures showing the decreased use of the bar between 1999 and year to date for 2001 and the expected use for the rest of 2001. He said that the present hours of opening are what the Club members require or expect.
[17] Mr Lansdown rejected complaints about noise levels. He said that to his knowledge only six complaints had been made in four years. In support he produced a letter from a former Police officer, who could not be present, to refute in part the allegations about one particular incident on 27 September 2001. We will refer to that incident shortly.
[18] Mr Duder and his partner are immediate neighbours of the Club. Their bedroom backs onto the Club car park and their house is about 50 metres from the Club building. Their children’s bedroom is at the same end of the house.
[19] Mr Duder said that since he has been living at that address there have been ongoing problems with excessive noise and drunken behaviour from patrons. He referred to several incidents alleging intoxicated behaviour and excessive noise that occurred on 5 and 10 December 2000, 19 January, 24 February, 3 March, 28 April, 5 May, 27 September and 6 October 2001.
[20] On 5 December 2000 Mr Duder and his partner, Cathy Fraser, wrote a letter to the District Licensing Agency complaining about the behaviour of intoxicated people in the car park between midnight and 1.00 am the previous Saturday. The people were leaving a function at the Club.
[21] On 10 December 2000 Mr Duder called Noise Control about an annual function being held at the Club. He said the noise was excessive and “grossly intoxicated” patrons were still leaving the Club at 2.00 am.

[22] On 19 January Mr Duder said the noise from the Club was so loud that they could not hear their television. When they telephoned Noise Control there was no reply. At 12.15 am they telephoned the Police. The noise stopped at 12.30 am.
[23] On 24 February Mr Duder again called Noise Control concerning excessive noise from the Club but there was no response.
[24] On 3 March when Mr Duder and Ms Fraser called Noise Control they were told that the officer was already on his way to the Club.
[25] On 5 March Mr Duder and Ms Fraser made another complaint about noise and they believe an abatement notice was served on that occasion.
[26] On 28 April there was a function at the Club. Mr Duder and Ms Fraser had guests at their house. As the guests were leaving several intoxicated persons gathered in the car park and yelled abuse in their direction. Mr Duder believes that the abuse was directed at their next door neighbour, Mr Kiely.
[27] Mr Duder next described an incident on 27 September 2001 when a function was held at the Club. This was the incident referred to by Mr Lansdown and refuted in part by former Senior Sergeant M A Kenny.
[28] Mr Duder said:

“The noise level got worse throughout the evening and included patrons yelling into the PA microphone, arguing and fighting in the car park between intoxicated people, yelling and screaming in the car park and playing guitars in the car park after 12.00 midnight.

On this occasion I believe the bar should have closed at 10.30 pm. At this time the noise level increased sharply and it appeared that rather than winding down the party was just getting into full swing. Large numbers of patrons did not start to leave the building until 11.45 pm and the last person left at 12.30 am.”

[29] In his letter produced by Mr Lansdown, Mr Kenny said:

“On Thursday night there was a SKIT (sic) performance held at the Club by the Supporters and Officials of the teams involved in the tournament. At approximately 10 pm after the performances had concluded, your Vice President of the Club made a speech stating the bar would be closing at 10.30 pm.

My position within the Club was situated by the door to the bar. At 10.25 pm I heard the bar grill being pulled down at approximately 12” from the bar top. At 10.30 pm the grill was shut down. While I was at the Club until 11.30 pm there were NO beer sales sold. ...

I can verify the Thursday night complaint as unfounded ... but the car park incident I cannot as I had left the club to go home.”

[30] Mr Kiely’s house is beside that of Mr Duder and Ms Fraser. Mr Kiely had no prepared brief of evidence and instead produced a series of documents that indicated the escape of noise from the Club has been a problem since at least 1998.
[31] Mr Kiely produced a letter dated 30 March 1998 from the Club addressed “To The Immediate Neighbours of The Pukekohe Rugby Football Club.” That letter said:

“Over the past weeks I have been liasing with a few of our neighbours, the police and the Franklin District Council regarding the volume of band noise during some past socials and the problems it has caused you.

Our close geographical proximity to you our neighbours is unfortunate but something that is a fact.

The financial stability of our Club relies on our ability to be able to run the occasional social but the downside of this is the noise generated by the bands.

We believe that the Rugby Club has to operate in a reasonable manner that has the least possible impact on our neighbours.

On Monday 23 March, Constable Kneebone and myself met with Tim Kiely and 2 other neighbours with the aim of arriving at an amicable agreement that meets everyone’s needs. Those present accepted the following proposal:

1. The Rugby Club run a maximum of 4 socials over the remainder of this rugby season. Approximate dates Mid May

Mid June

Mid July

End August

2. Flyers will be delivered to local residents prior to each Social.
   
3. All bands playing at socials are to be vetted by the committee to ensure that volume restrictions are adhered to.

N.B. The Local Licensing Authority has been approached regarding

appropriate noise levels.

4. During the evening of Socials, noise levels will be monitored by the Club Management.
   
5. Bands playing at Socials will cease playing at midnight.
   

We are also making some minor changes to our operations that will answer some of the minor concerns that have been expressed.

1. Our incinerator has been repositioned to help avoid smoke drift.

2. Where possible, members are being directed to use our front door (Franklin Rd entrance) rather than the side door in the carpark closest to our neighbours.
   
3. We are investigating costs involved in erecting some form of barrier or restrictive measures that will prevent vehicles misusing our carpark.
   

We are aware that our Social nights cause you the most concerns. As you can see we are working towards resolving both this issues (sic) and the lesser ones so that we can live together as better neighbours.

We therefore ask that you give us some leniency on Social nights.

If you have any further queries and comments please don’t hesitate to telephone me on 025 798 216.

Yours faithfully

Ted Morrice

President PFRC”

[32] Mr Kiely produced an undated letter addressed “To the Neighbours of the Pukekohe Rugby Club”. That letter said:

“On Saturday 28 October 2000 our Rugby Club will be hosting the 30th Birthday celebration of Dean Sheppard, one of our longstanding Club Members.

Over the past year or so, with our neighbours in mind, we have cut back on the number of late night social events held within our Clubrooms.

As this is a special occasion, we thought it would be prudent to let you know in advance of this event and at the same time ask for your understanding and tolerance.

Although there will be added noise we will endeavour to keep the volume at an acceptable level.

Yours faithfully

Ash Edwards

President Pukekohe Rugby Club”

[33] Mr Kiely produced copies of two Franklin District Council Noise Reports for the period 23 to 26 February 2001. Those reports disclose that at 10.50 pm on 24 February Mr Kiely reported a loud stereo at the Pukekohe Rugby Club. At 11.14 pm the Noise Control Officer reported that the noise was not excessive and the Club “have closed windows”.
[34] At 11.30 pm on the same night Mr Kiely again reported a loud stereo at the Club. The reports disclose that at 11.56 pm an abatement notice was issued for 72 hours.
[35] Mr Kiely also produced a handwritten “File Note” from Mr Long dated 9 May 2001. That file note records that on Saturday evening Mr Kiely had called Noise Control about noise from the Club. An officer had attended and determined that the noise was not excessive. However, the officer asked the Club to close a door on the end of the building. That was done. The file note goes on to say:

“Later in the evening some drunken members left the Clubrooms and assembled near the boundary of Mr Kiely’s property. They proceeded to shout abuse, bang pot lids and to play their car stereos very loud.

Cathy Fraser rang on Tuesday 1 May 2001 to complain about this incident. The children in her home had felt uneasy about the situation.

I drew this to the attention Mr Bob Lansdown with a suggestion that an apology should be made to the residents for this incident.

Ash Edwards has contacted me and confirmed that an apology would be made.”

[36] Mr Long referred to the history of the Club and the progressive change in its authorised hours. He said prior to 1997 the Club’s hours were:

1 October to 29 February

Wednesday 6.00 pm to 10.00 pm

1 February to 30 September

Tuesday and Thursday 7.30 pm to 10.00 pm

Friday 6.00 pm to 10.00 pm

Saturday 3.00 pm to 12.00 pm midnight

Sundays and Public Holidays 3.00 pm to 9.00 pm.

[37] Mr Long noted that “while the Club observed these hours there were only infrequent complaints of noise from the Club’s activities.”
[38] On 19 December 1997 in an “on the papers decision” the Authority granted the Club the following hours:

All Year

Monday to Thursday 6.00 pm to 10.30 pm

Friday 6.00 pm to 12.00 midnight

Saturday 2.00 pm to 12.00 midnight

Sundays and Public Holidays 2.00 pm to 9.30 pm.

[39] Mr Long said “while these hours are not excessive when compared with those granted to similar sporting clubs they have produced a considerable reaction from neighbours.”
[40] It should be noted that Mr Long has also said that the Club conducts the sale of liquor in a responsible way. The Club is one of the best performing rugby clubs in the district as regards host responsibility.
[41] Mr Long said that there have been continuing complaints about noise from activities on the Club’s premises.
[42] Mr Long produced eighteen documents recording complaints about noise and the interaction between the Club and its neighbours regarding the issue of noise. The dates of those documents extend from 17 December 1997 until 6 October 2001.
[43] Mr Long also produced a copy of all call-outs by Chubb Security who provide the Noise Control service to the Franklin District Council. There were ten calls between 20 January and 6 October 2001.
[44] The principal cause of noise has been from activities at the Club. That includes noise from bands, jukebox, voice calls in the car park, and vehicles leaving the car park.
[45] Mr Long said that in addition to the attendance of the noise control contractor he and colleagues have also attended the premises. He said that he was able to confirm that on some occasions the noise was unreasonable.
[46] Mr Long noted that the Club has taken steps to combat the noise problem but they have not been effective in eliminating complaints. At times the premises can become overheated encouraging members to open windows and doors reducing the sound proofing of the building.
[47] It was Mr Long’s opinion that although not all complaints were justified many were justified. It was his view that the Club had not adequately addressed the problems when they have been brought to its attention.
[48] In his report of 9 May 2001 pursuant to s.66 of the Act Mr Long outlined his attempt to resolve the issues between the Club and the objectors by facilitating a meeting between them.
[49] Prior to the meeting the Club became aware of objections to its application for a variation. The Club then withdrew its application for variation. At that point one objector withdrew when notified of the Club’s decision.
[50] As a result of the meeting the Club wrote a letter dated 30 April 2001 and circulated it to all objectors. That letter outlined the Club’s proposals to reduce noise. After reading the letter a further two objectors withdrew. Four objectors remained opposed to the Club’s application for renewal. Mr Long then said: “Having discussed this matter with all parties I am of the opinion that there is little point in trying to facilitate any further meetings.”

[51] Finally Mr Town, Chief Executive of the Franklin District Council, said:

“The Pukekohe Rugby Football Club (PRFC) has been occupying and operating from its existing site before (as early as 1981) the development of the Edwards Court subdivision (1983) onwards. Therefore, in principle the Council regards PRFC has (sic) having existing use rights that would override any arguments based on ‘incompatibility’ with the adjoining residential subdivision in Edwards Court.

The Council expects the PRFC to comply with the conditions of its Club Liquor Licence in a consistent manner and to work co-operatively with neighbours to resolve issues as they arise.”

Authority’s Conclusion and Reasons

[52] Section 68 of the Act provides:

“68 Criteria for renewal

In considering any application for the renewal of a club licence, the Licensing Authority shall have regard to the following matters:

(a) The suitability of the licensee:

(b) The conditions attaching to the licence:

(c) The manner in which the licensee has conducted the sale and supply of liquor pursuant to the licence:

(d) Any matters dealt with in any report made under section 66 of this Act.”

[53] The issue in this case comes down to the escape of noise from the Club’s premises and the behaviour of its members towards the Club’s neighbours.
[54] It is apparent from the Inspector’s evidence and reports that the Club is trying to comply with its duties in respect of host responsibility. The Club has appeared occasionally in the “Last Drinks Survey” but the Inspector reports that those appearances are statistically insignificant.
[55] It is also clear from the evidence that the Club has made genuine efforts to deal with the noise issue.
[56] However, it is equally clear that the noise issue is not just a recent phenomenon. The evidence shows that it has become an issue since the Club was granted an extension to its hours in 1997. The Inspector noted this fact in his evidence.
[57] We cannot agree with Mr Town that the PRFC having “existing use rights would overcome any arguments based on ‘incompatibility’ with the adjoining residential subdivision.”

[58] This is a situation that arises time and again, more particularly where local authorities zone land as “residential” when it adjoins land zoned as ”commercial” in a central city location. Such a situation led to our statement in Saltwater Café & Bar (LLA 391/2001) that:

“... The Authority intends to ‘draw a line in the sand’ on the issue of noise.

...

It is our view that no-one should have to put up with persistent interference with their sleep patterns. We do not think it is sufficient to submit that a true test is the number of calls to the licensed premises or the Noise Abatement Officer. We have heard enough evidence to suggest that making such calls in the early hours of the morning is unpleasant and often unrewarding.

Noise is not just a resource management issue. The escape of noise (particularly music) is an example of bad management. The Authority takes the view that if no attempt is made to prevent the escape of, or reduce noise, then it is the Authority’s duty to monitor the hours of opening, if not the existence of the licence. ... ”

[59] The Inspector has recommended that the Club’s licence not be cancelled but the hours reduced. Alternatively, he recommended that we could follow the suggestion of Mr Duder, that the Club be restricted to the following hours:

One night a week after training until 10.30 pm.

After games, usually Saturday but sometimes midweek or Sundays until 11.30pm.

On all other occasions a special licence to be applied for after consultation with neighbours.

[60] Mr Duder said that the neighbours have never opposed a special licence.

[61] We have considered the lengthy history of the concerns of the Club’s neighbours. They are entitled to some relief. At the same time we acknowledge the active steps taken by the Club to meet the concerns of its neighbours.

[62] Accordingly, we determine that the amended hours will be:

All Year

Monday to Thursday 6.00 pm to 10.00 pm

Friday 6.00 pm to 11.00 pm

Saturday 2.00 pm to 11.30 pm

Sundays and Public Holidays 2.00 pm to 9.30 pm.

[63] We renew the licence until 19 December 2002, that being the anniversary date of the licence. If at the end of that period the premises appear to have been operated satisfactorily and upon recommendation from the Inspector, we may consider an application for variation. We authorise the issue of a replacement licence and a notice of renewal.

W Newall
Deputy Secretary

Liquor Licensing Authority

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