Bolongo, re [2002] NZLLA 595 (17 October 2002)

Last Updated: 3 October 2010

Decision No. PH 595/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MATHIEU EKUKU BOLONGO pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated on the first floor, 335 Victoria Street, Hamilton, known as “Kilamanjaro”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at HAMILTON on 17 October 2002

APPEARANCES

Mr M E Bolongo – in person
Mr T Van Der Heijden – Hamilton District Licensing Agency Inspector – to assist
Dr J S Clayton – objector - in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Mathieu Ekuku Bolongo for the renewal of an
on-licence in respect of premises situated on the first floor, 335 Victoria Street, Hamilton, known as ‘Kilamanjaro’. The application was not opposed by the Police, or the District Licensing Agency Inspector. However, when the application was advertised, nine public objections and a petition, were received. All the objections related to the emission of excessive noise from the premises.

[2] The Authority has heard evidence from Ms Catherine Lochore, Environmental Health Officer for the Hamilton City Council. The report prepared by Ms Lochore, shows that there have been no less than 18 complaints issued since the licence was first granted. As a result of those complaints, visits have been made to the premises by a noise abatement officer, or other officer of the Council. The latest visit was last night at about midnight. On that occasion a noise level of 53 dba level 10 was recorded. Although there is no noise limit under the Resource Management Act, for inner city premises, it seems, that 50 dba should be the norm. It also needs to be pointed out that bass music can be more pervasive, as it travels through walls and, of course, upsets sleep.

[3] The number of call outs was of sufficient concern to us to question Mr Bolongo about what steps he has taken to redress the problem. It seems that Mr Bolongo is keen to co-operate, but has not yet taken any professional advice. Consequently, he has made no reasonable attempts to rectify the problem.

[4] Following discussions with the parties, it has now been agreed that these proceedings will be adjourned for a minimum of six months. That period of time will be to enable Mr Bolongo to take steps to redress the problem. We ask that the District Licensing Agency Inspector, who has already held discussions with Mr Bolongo, monitors the situation, and reports to the Authority in due course. It should be clear that Mr Bolongo will need to carry out any improvements as soon as possible to enable the monitoring process to be effective.

[5] Mr Bolongo has said that the air conditioning has been fixed. We presume that this means that the windows will now no longer have to be open. He is keen to obtain a noise meter, to try and ascertain what the appropriate noise level might be. Suggestions have already been made that Mr Bolongo purchase a noise limiter to control the level of amplified music. Alternatively, he should seek the advice of an acoustic consultant.

[6] Those are matters for him. What he needs to understand is that in July last year this Authority granted the renewal of a licensed premises known as “Sheepy’s Bar and Carvery” in South Auckland. Because of noise complaints, the Authority reduced the opening hours from 3 am to 1 am. The company appealed. The High Court of Auckland in a judgment, reference AP 77-SW01, upheld the right of the Authority to reduce the hours of operation because of noise.

[7] Since that time the Authority has made the following statement in a case of Paihia Saltwater (2001) Limited PH 391/2001:

“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.”

[8] In other words, the escape of noise will bring any renewal of licence within the ‘suitability’ criteria listed in s.22 of the Act. We trust, that after considering these comments, Mr Bolongo will take reasonable steps to prevent the escape of noise, and that a favourable report is received in six months time. Should that be the case and should the objector, Dr Clayton, be satisfied with the steps taken, then we would be able to issue a renewal on the papers. If not, and if there are further complaints and call outs from residents, it may well be that this public hearing will have to be continued.

DATED at WELLINGTON this 24th day of October 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

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