Crabbar Limited, re [2002] NZLLA 260 (16 May 2002)

Last Updated: 7 March 2010

Decision No. PH 260/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by CRABBAR LIMITED for an on-licence pursuant to s.7 of the Act in respect of premises situated at 546 Papamoa Beach Road, Papamoa, Tauranga, known as "Crab Bar"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAURANGA on 2 May 2002

APPEARANCES

Mr M P Ward-Johnson – for the applicant
Ms D L Daubney – Tauranga District Licensing Agency Inspector – to assist
Dr T A Jones – in opposition
Mrs S N Jones – in opposition
Dr E K Thomas-Kuruvilla – in opposition

RESERVED DECISION OF THE AUTHORITY

The Application

[1] This is an opposed application by Crabbar Limited for an on-licence pursuant to s.7 of the Act. The proposed premises are situated at 546 Papamoa Beach Road, Papamoa, Tauranga. The building is an existing shop in a block of shops on a main arterial route. The site is zoned Commercial A in the Tauranga Transitional District Plan.

[2] Under the District Plan the proposal is a discretionary activity. Normally there would be a requirement for 11 on-site car parks. In a non-notified decision dated 18 January 2002, the Tauranga District Council granted consent to the operation of a bar facility without the necessity to provide the 11 parking spaces.

[3] The Council was satisfied that no special circumstances existed that required notification of the application in accordance with s.94(5) of the Resource Management Act 1991. It considered that there was adequate public parking to cater for the proposed bar activity. Its requirement was for two on-site car parks at all times.

[4] Crabbar Limited is a private company. It was incorporated on 7 January 2002. Its directors are Grant Scott Eynon, Peter Desmond Cooney and Robert Turner. Mr Eynon currently manages and operates two other bars in Tauranga. These are known as the Spi Bar and Beach Street Bar & Café. Mr Eynon has held a manager's certificate for the past seven years. He has been involved with the management of licensed premises for the past eight years.

[5] It is intended that Mr Eynon will share the management of the premises with Heather Burns who also holds a General Manager's Certificate. It is anticipated that six or seven part-time bar staff will be available to work varied shifts to assist management. According to the District Licensing Inspector, the other bars (Spi and Beach Street) are operated in a responsible manner with no adverse effects on neighbouring commercial or residential land use. Accordingly, she has no issue with the suitability of the applicant company.

[6] The proposal is to operate the premises as a sports bar and café. It is intended that the bar will be primarily a suburban local retreat. It is expected that the number of patrons will be no greater than 50 at any one time. The owners intend to create a congenial low key environment. Mr Eynon's evidence included the following:

"Liquor will be supplied in keeping with any licence granted in a boutique fashion, with a full range of spirits, at least two tap beers and a selection of packaged boutique beer and bottled wine to be sold by both bottle and glass."

[7] Entertainment will be from a large TV screen playing various sporting programmes. Music will be piped through speakers. The food on offer will include a variety of pizzas to be cooked on site. There will be no live music.

[8] The applicant seeks the following licensed hours:

Monday to Wednesday 10.30 am to 12.00 midnight
Thursday to Sunday 10.30 am to 1.00 am the following day

[9] These hours are within the guidelines of the Tauranga District Council Sale of Liquor Policy. They are also in accordance with the RMA certificate issued by the Tauranga District Council and presented to the Authority pursuant to s.9(1)(e) of the Act. There is a shopping plaza within 200 metres of the proposed premises. Within the shopping plaza, there are two off-licences, two licensed restaurants, and a tavern. According to the Inspector, all have closing hours of 1.00 am the following day.

[10] The applicant does not anticipate that the bar will remain open during the hours applied for. Mr Eynon stated that to do so would not be in keeping with the theme of the premises. At this stage Mr Eynon expects to close by 10.00 pm on weeknights, and 11.00 pm on Fridays and Saturdays. It is anticipated that the bar will only be open until the later hours for special occasions or sporting events.

[11] Mr P D Cooney is the other working director. He is a property developer and is also involved in the construction business. He confirmed that the applicant company had commissioned Acoustic Engineering, to consider the potential noise impact on the local environment. We are grateful to the objectors who were prepared to accept Mr Lear's brief without the necessity of his being called to give evidence.
[12] Mr M R Lear is an acoustic engineer. He has a Bachelor of Engineering with Honours in Mechanical Engineering. He has 15 years experience as an acoustic engineer. He gave a written certificate that if conditions of operation proposed by him were fully implemented, then the noise would not exceed:

"Daytime

50 dBA L10 at or within the boundary of any affected Residential zoned site

65 dBA L10 at or within the boundary of any affected Commercial Business zoned site

Night-time

40 dBA L10 at or within the boundary of any affected Residential zoned site

65 dBA Lmax at or within the boundary of any affected Residential zoned site

65 dBA L10 at or within the boundary of any affected Commercial Business zoned site

85 dBA Lmax at or within the boundary of any affected Commercial Business zoned site"

[13] According to Mr Lear, these levels are below the levels permitted by the proposed Tauranga District Plan for daytime and night time operations.

[14] The conditions of operation refer to a number of conditions such as public access to the outdoor deck area, doors and windows to be fixed and glazed, refuse disposal at certain hours, no live drums or amplified live music, and so on. The conditions of operation contain a large number of common sense provisions. We are more than satisfied that the company has adopted a responsible approach. We intend that the applicant company will comply with the conditions of operation prepared by Mr Lear. If it does not do so, then we would expect to receive an application under s. 132 of the Act. This means that there should be no adverse effect on neighbours.

[15] Mr Cooney also gave evidence that a traffic survey had also been undertaken. The report was requested to examine and describe the traffic effects that may be generated from the bar. The conclusion by Traffic Design Group Limited was as follows:

"On the basis of this assessment, it is considered that the additional traffic effects generated by the intended Sports Bar activity can readily be described as negligible, and fully able to be absorbed by the local traffic environment.

The proposal is able to fully satisfy the intent of the traffic planning provisions of the Proposed District Plan.

Accordingly, it can be confidently concluded that there are no traffic planning reasons to preclude acceptance of the Sports Bar activity as described."

[16] Coincidentally, the Tauranga District Council had retained a firm of planning and design consultants to advise on the proposed development of the Papamoa Domain which is opposite the proposed premises. The proposal included the statement:

"40 new car parks are proposed immediately adjacent to Papamoa Beach Road to service the demand generated by the adjacent shopping centre."

[17] Mr Eynon said that the installation of gaming machines had not formed part of any consideration by the directors. He said that the company was well aware of the new gaming requirements. Mr Cooney said they had been discussed, but not significantly. Both gave the impression that gaming machines were not going to play any part in the business. The Authority has expressed concerns about the requirements for designations for on-licences to cover gaming machines, particularly in suburban areas. In this application, the request is for designation of the entire premises as a supervised area. In the circumstances the designation will cover all areas other than any areas used for gaming machines.

[18] Neither the Police nor the Medical Officer of Health nor the District Licensing Agency Inspector had any objection to the application.

The Objectors

[19] As a result of the public notices, eleven objections were received from business operators in the vicinity, and members of the public. There was also a petition with over a hundred signatures. No attempt had been made to analyse the signatories to see whether they meet the requirements of s.10(1) of the Act. Nevertheless the petitioners expressed concern about the bar, and the closing hour beyond 10.00 pm. Three of those objectors were represented at the hearing, although two of them share the same premises. A number of the objections referred to the applicant's inability to prove a need for such a facility.

[20] The majority of the objections related to perceived lack of car parking spaces for the proposed activity. The objectors also raised the issue of hours of operation. Objections from some residents were based on potential noise nuisance, and behavioural problems alleged to be associated with any licensed premises.

[21] Dr T A Jones lives at 560 Papamoa Beach Road and has his surgery next door at number 558. His submission was that there was no proven need for the bar, and there were adequate licensed facilities elsewhere. As was explained to Dr Jones, the issue of need is no longer a matter to be considered under the Sale of Liquor Act 1989. Parliament has signalled that the supply of liquor is not a protected market. The main criteria to be considered relate to the ability of the applicant to respect and apply the law.

[22] Dr Jones considered that the proposed bar should not have hours greater than the other outlets close by. We would normally agree with such a submission. However, we note the report submitted by the Inspector in which she stated that the five outlets situated 200 metres away, all having closing hours of 1.00 am. Dr Jones was concerned about the presence of undesirable people who might be attracted to the bar. He considered that the Tauranga Police would be unable to cope with any flashpoint. It was our view that the type of bar which is proposed, is unlikely to attract the sort of people about whom Dr Jones was so concerned.

[23] Dr Jones was also concerned about what would happen when the bar closed. There is an ongoing debate about the responsibility of licence holders towards their patrons when they leave the bar. On the one hand they cannot be responsible for unforeseen and unpredictable acts. On the other hand if they allow persons to become intoxicated, then they may well suffer consequences as a result of disorderly behaviour by those patrons.

[24] In terms of s.13(1)(d) of the Act, the issue is whether we have sufficient faith that the applicant will ensure that the laws relating to the supply of liquor to prohibited persons, will be observed. Prohibited persons are defined in s.2 of the Act as persons under 18, intoxicated persons, and any other persons prohibited by the licence. In this case, based on the evidence that we heard, we are satisfied that the applicant will uphold the law, and s.13(1)(d) in particular.

[25] In the event that nuisance is caused to neighbouring residents as a result of intoxication in the premises, or from intoxicated exiting patrons, then we would anticipate that an application from the Police or an Inspector pursuant to s.132 of the Act, would be filed with the Authority on the grounds of unsuitability.

[26] Mrs S N Jones also resides at 560 Papamoa Beach Road and works at the medical centre next door. From our observations of the site, the medical centre is a reasonable distance away from the proposed sports bar. Mrs Jones complained about noise and disturbance from the Papamoa Tavern and the Blue Bijou, restaurant every Christmas. She felt that a good night's sleep, and consequently, the welfare of the patients, deserved more consideration.

[27] On the issue of noise, we agree. We are already on record with these statements in Paihia Saltwater (2001) Limited LLA 391/2001:

"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."

[28] On the other hand in this case, the applicant company has obtained an acoustic report. It will be required to adopt it. Many licensed premises have shown that they can operate in harmony with their residential neighbours. It is no coincidence that the managers and owners of such premises also show a commitment to the reduction of liquor abuse.

[29] As was said in Tonto Investments Limited LLA 1210/95:

"Much depends on the location of the premises, the licensee, the clientele, style of operation and type of premises. It is not so much the hours of trading as the manner of trading that requires close examination."

[30] It is our view of the evidence, that this proposal is to operate a small low key local retreat with a congenial environment. As such, we do not consider that the neighbours will be adversely affected. If the proprietor of the proposed sports bar changes the style or theme of the premises, then it will do so in the knowledge that it places its on-licence at risk.

[31] Dr E K Thomas-Kuruvilla is the person most likely to be affected by the establishment of the bar. She has her surgery next door. She has lived in an apartment above the surgery for the last 10 years. Over that time the zoning has gone from Commercial B to Commercial A. In other words her residence is no longer a conforming use.

[32] It was surprising but understandable that Dr Thomas-Kuruvilla took the opportunity to attack the perceived impact of liquor on her patients. The six headings to her submissions read:

"Commerce without a conscience

Consumer mentality without contribution

My basic human rights threatened

A bar next door will devalue these premises

Open all nights on weekdays and weekends till midnight?

Increased criminal elements in our communities."

[33] In her paper, Dr Thomas-Kuruvilla referred to other licensed premises and the lack of need for further outlets. She believed that easy access to alcohol was directly proportional to the increasing crime rate. She believed that people involved in the industry had little conscience, and exploited the vulnerable. She was concerned about her sleep, and the potential devaluation of her home and surgery. She felt that restricting the issue of licences would improve social values.

[34] Dr Thomas-Kuruvilla made no mention of any concerns about the proximity of the surgery to the bar, and no mention of the closing hours. Her main aim was to ensure that the application was refused. The proximity of a medical centre was a major consideration for us in Bear & Associates Limited LLA 251-252/2001. In that case because of neighbouring land use, we set the opening hours at 6.00 pm except for weekends.

Conclusion

[35] In considering an 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 proposes to engage, in –

(i) The sale or supply of any other goods besides liquor and food; or

(ii) The provision of any service other than those directly related to the sale and 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 section 11 of this Act.

[36] Mr Eynon has a good record in the hospitality industry. His company has anticipated public concerns by obtaining acoustic and traffic reports. In the absence of adverse comment by the District Licensing Agency Inspector, the Medical Officer of Health, and the Police, we are confident that the company is well aware of its responsibilities should it be granted a licence.

[37] Some of the concerns of the objectors were related to resource management issues, which are outside the jurisdiction of the Authority. Given both a suitable applicant and a Resource Management Certificate, as in this application, a liquor licence is generally granted under present legislative provisions. There are a few exceptions but this case is not one of them. The tailoring of conditions in each licence to meet each particular factual situation is the responsibility of the Liquor Licensing Authority, or if unopposed, the District Licensing Agency. In the circumstances of this case, we do not hesitate to grant the hours requested.

[38] As was said in Cayman Holdings Limited LLA145/2001:

"The Authority's approach has been to satisfy itself that the applicant is suitable and will uphold the law. The Police or District Licensing Agency Inspector is empowered to apply to vary, suspend or cancel a licence pursuant to s.132 of the Act if problems arise. Apprehension of problems alone is not sufficient to prevent a suitable applicant, particularly one supported by a District Licensing Inspector and the Police from exercising rights granted by the District Council."

[39] The purpose of the legislation is that any initial grant of a licence will be restricted to twelve months to give neighbouring residents and other authorities the opportunity to comment when the licence is due to be renewed.

[40] For the reasons we have set out above, we are satisfied as to the matters to which we must have regard as set out in s.13(1) of the Act. We grant the applicant an on-licence for the sale and supply of liquor for consumption on the premises to any person present on the premises. A copy of the licence setting out the conditions to which the licence is subject is attached to this decision. In accordance with paragraph [17], the designation will cover all areas except any area to be used for the installation of gaming machines.

[41] The licence will not issue until:

• [a] 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.
  
• [b] All relevant clearances have been obtained.
  

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

• [a] 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
  
• [b] A copy of the licence, and the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through the principal entrance.
  

DATED at WELLINGTON this 16th day of May 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

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