The Narrows Landing Limited [2003] NZLLA 479 (16 July 2003)

Last Updated: 3 June 2010

Decision No. PH 479/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by THE NARROWS LANDING LIMITED pursuant to s.18 of the Act for renewal of on-licence in respect of premises situated at 431 Airport Road, Hamilton known as "The Narrows Landing"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at HAMILTON on 29 May 2003

APPEARANCES

Mr M J Hammond – for the applicant
Mr B D Faris – Waipa District Licensing Agency Inspector – to assist
Mr J D and Mrs M A Snowball – objectors
Mr R W Batley – objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by The Narrows Landing Limited for renewal of its on-licence pursuant to s.18 of the Act for the premises known as "The Narrows Landing". The applicant also seeks a variation to its licence.

[2] The premises are situated at 431 Airport Road Hamilton. The premises operates as a boutique hotel, restaurant, conference and function venue. Its authorised hours are:

Monday to Saturday 7.00 am to 2.00 am the following day

Sunday 7.00 am to 2.00 am the following day for the purpose of dining

And at any time on any day to any person for the time being living on the premises.

[3] The variation seeks to include the areas known as the Pirongia Deck and the Village Green within the licensed area. The earlier decision of the Authority in The Narrows Landing Limited LLA PH 409/211 required the redefinition of the premises in respect of the Pirongia Deck and Village Green to be conducted by way of a variation application pursuant to s.16 of the Act. Originally, the application for variation also sought to include a piece of land known as the Golf Area within the licensed area, as well as a proposed gymnasium, spa, and swimming pool to be located on the Village Green. These further proposed additions were withdrawn in a letter dated 17 February 2003 following receipt of the Resource Management Act certificate which excluded those additions.

[4] A Resource Management Act certificate was issued approving the addition of the Pirongia Deck and the Village Green to the licensed premises with conditions prohibiting the inclusion of the Golf Area as well as a proposed gymnasium, spa, and swimming pool to be located on the Village Green. Under the certificate the following trading hours were approved:

Pirongia Deck 7.00 am to 12.30 am the following day – 7 days per week

Village Green 7.00 am to 10.00 pm, 7 days per week.

[5] Public notification of the applications attracted three objections from nearby residents. Mr Jim and Mrs Marie Snowball objected to the applications on the grounds of suitability of the applicant (in particular Mr Brian Herman), the conduct of the premises under the applicant’s liquor licence, noise issues, and the activities to take place on the Village Green had not been identified and approved pursuant to the resource consent. Mr R W and Mrs M H Batley also objected to the suitability of the applicant without stating their reasons. The third objection, from Steven and Cheryl Moulden, was withdrawn by letter of 23 February 2003 when the applicant withdrew its application to include the Golf Area, which borders Mr and Mrs Moulden’s property.

[6] There was no opposition to the renewal of the licence from the reporting authorities.

Background

[7] Debra Marie Petersen is the recently appointed manager of the “The Narrows Landing”. Between 1982 and the present date she has had extensive experience in the management of a large number of licensed premises. In December 2001 she was approached by Deborah Munday and Mr Brian Herman to take over the management and day to day running of ”The Narrows Landing”. She lives on the premises.

[8] Ms Petersen said conferences and corporate team building courses are to be an essential part of their business. They intend to have such groups involved in a variety of activities taking place on the Village Green. Accordingly, she realised that there could be a risk of breaching the Sale of Liquor Act if a member of one of those groups wandered down the path to the gardens or Village Green area with a glass of liquor in his or her hand. As well, a bridal party might want to incorporate a toast with champagne in their photographs in the Village Green area. Although it is unlikely that people will wander down to the Village Green at 7.00 am with a drink in hand she had to guard against the possibility of that happening. Hence, she considered it necessary as a precautionary matter, and a responsible operator of licensed premises, to apply for the variation. Ms Petersen emphasised that it was not intended to promote the area as a licensed area.

[9] Ms Petersen said that the justification for the hours of trading for the Village Green was to be able to meet the requirements of potential clients. Those requirements may include: champagne breakfasts, breakfast meetings, conferences, weddings, corporate functions, as well as having accessibility to house guests. She supplied a log of 30 functions for the period between 1 November 2001 and 27 September 2002 where there had been more than fifty guests. The keeping of this log is a requirement of the resource consent. The same consent permits the applicant to hold five functions per year for up to 200 guests.

[10] Ms Petersen described an induction programme she has instituted for her staff since she has taken over the management of the premises. It involves the company’s responsibilities as regards its resource consent, host responsibility, the Sale of Liquor Act, and health and safety issues. The staff manual also includes “The Narrows Landing” noise management plan.

[11] Ms Petersen said that the staff are very aware of their responsibilities and duties to reduce noise. Ms Petersen walks around the premises outside to ensure that the permitted noise levels are not exceeded. She said that they are very cautious as to what type of events they get involved in. For example, they do not accept bookings for school balls.

[12] Brian Paul Hermann and his partner Ms Deborah Mundy are the sole directors of the applicant company. They live on the site with their children. He said that the Pirongia Deck now has a permanent roof. It used to have a canvas roof. This was unsatisfactory for a number of reasons. Principally, functions require satisfactory lighting, and it was not possible to have that with a canvas roof. Secondly, the gum trees overlooking the roof dropped branches which pierced the roof, so it was not waterproof.

[13] Mr Hermann did not accept Mr and Mrs Snowball’s letter of objection regarding excess noise escaping from the premises. He said that the resource consent has strict rules that they have to operate under. The sound equipment was valued at $20,000 and was checked every six months. In addition, Mr Faris has checked the premises for the emission of sound. Mr Hermann said that they have now installed two doors between the lounge and the Pirongia Deck to prevent the escape of noise.

[14] He said that it was always their intention to have sports activities on the Village Green. When they applied for the resource consent, they deliberately did not specify what sports would be played there. They envisaged that drinks would be brought out at half-time to the participants.

[15] He said the reason for the hours for the Village Green was that they have had a few corporate champagne breakfasts. They have even had helicopters landing on there, and people have had picnics with champagne. He said that the proposed trading hours of the Village Green will not necessarily mean that it will get noisier. He said that traffic volumes on the road past the premises had quadrupled in the last five years, inferring that traffic noise will also have an effect.

[16] Although they have bands playing on the premises they play in the room under the verandah. It is closed off to prevent noise escaping although it does have an internal stairway to the Pirongia Deck. It is a non-smoking area, and people have to go outside to smoke.

[17] Brian David Faris is the Waipa District Licensing Agency Inspector. He was called by Mr Batley to give evidence. He said that as part of his duties he reports on all relevant aspects of applications for liquor licences. Mr Batley asked him to read a passage from a letter dated 1 October 1999. It was written to Mr Batley from Mr Wayne Allen, the Planning Services Manager for the Waipa District Council. That passage simply stated that the land use consent in respect of future proposed buildings would lapse in two years if the consent was not given effect to in that time. Mr Faris said that the applicant has a Resource Management Act consent with which they have complied.

[18] Mr Faris said that he had monitored a noise complaint from Mr Batley in July 2002 when there was a Heart Foundation function at “The Narrows Landing”. He did not measure it with a meter. He said that he went to the car park at the applicant’s premises first, then he drove to Mr Batley’s property which is a considerable distance away. He was unable to hear the noise complained of. He said that The Narrows’ noise was mixed with a lot of other ambient noise. The Narrows’ noise was not the dominant noise. He could hear some noise that rose and fell that sounded like an auctioneer. He said when he monitored the noise from Mr Batley’s residence he went to the notional boundary (not the actual boundary) which is always taken as being 20 metres from any wall of a building.

[19] Mr Faris said he had visited the premises five or six times to monitor it for noise. He noted that Mr Hermann’s relationship with the council and its staff had improved, and he has now adopted a more co-operative manner. Mr Faris said there were no other outstanding requirements, conditions, or concerns relating to “The Narrows Landing”.

[20] Steven Moulden is the closest neighbour of “The Narrows Landing”. He had filed an objection which he later withdrew by letter on 23 February 2003. Mr Moulden withdrew his objection after he was advised that the applicant had amended its application not to serve liquor within certain specified areas.

[21] Mrs Snowball called Mr Moulden as a witness. He said that he had complained about noise from “The Narrows Landing”. The first time was in November 2001, and the last occasion was about 4-8 weeks previously when he had asked for the music to be turned down. He had to telephone the premises twice before his request was met. He had made two calls in the last year or so.

[22] He was then questioned about the death of his dog which, as it turned out, had been accidentally poisoned when it went onto “The Narrows Landing” property. This evidence was elicited to show that Mr Hermann was unsuitable to be involved in licensed premises. We did not consider that evidence to have any bearing on the suitability of the applicant company.

[23] Mrs Marie Snowball and her husband live on a neighbouring property to “The Narrows Landing”. She drew the Authority’s attention to some of the conditions of the original resource consent issued on 28 September 1999 in relation to the Pirongia Deck and the Village Green. Those conditions related to noise requirements, and the maximum number of guests on the Village Green. Mrs Snowball expressed concern that the Village Green had not been withdrawn from the application. Of particular concern was that the proposed activities on the Village Green had the potential for making a lot of noise. She pointed out that the noise management plan prepared by Hegley Acoustic Consultants was prepared in October 1999, and therefore did not address the present requirements of the Village Green. She said that the resource consent had also lapsed. However, Mr Faris confirmed that from the Waipa District Council’s point of view there were no outstanding requirements or concerns.

[24] In respect of the Pirongia Deck, Mrs Snowball asked the Authority to decline the trading hours of 7.00 am to 12.30 pm, but she did not suggest what hours should replace them. She was concerned about the noise emanating from the Pirongia Deck, and the steps that should be taken to avoid that happening. As well she expressed concern about the number of special licences that have been issued. In our decision The Narrows Landing Limited LLA PH 409/2001 we ruled that an application for a variation of the relevant conditions would be required, and we expressed the hope that it would be sooner rather than later. We also said that in the meantime the applicant would have to continue to rely on special licences.

[25] Mrs Snowball felt that the management of “The Narrows Landing” in the past twelve months had done nothing to get on with their neighbours. She referred to one incident where a wedding party had a fireworks display which she said was inappropriate in a rural setting because of the animals. However, she was not aware that a permit had been obtained from the Waipa District Council for the display. Mrs Snowball also expressed disappointment at the lack of effective back-up to noise control by the Council’s enforcement officers. Mrs Snowball acknowledged that she lived approximately 500 metres from the Pirongia Deck.

[26] William Evans McCready is a resident of Waipa District. He lives in the vicinity of Lake Karapiro which is some considerable distance from the applicant’s premises. He does not qualify as an objector. However, he was called by Mr Snowball to give evidence concerning his experiences with another licensed premises that operates similarly to “The Narrows Landing”.

[27] He expressed concern as to difficulty for objectors to gather and present evidence in order to oppose an application under the Resource Management Act and the Sale of Liquor Act. He said as the Authority sets the conditions of a licence it should be the Authority that ensures that the conditions are complied with. He said an objector requires a strong will to maintain a complaint, and be successful. His complaint was concluded successfully because of his perseverance when the owner of the lodge conceded that they had been serving liquor when they were not authorised to do so. It was his observation that guests at places like “The Narrows Landing” tend to go outside with their drinks.

[28] Mr Hammond submitted that there had been no opposition from the Police or the Inspector. The Inspector had made at least six visits to the premises. He was able to say objectively that Mr Hermann had adopted a co-operative attitude to the extent that it was not a superficial thing. He submitted that Mr Hermann was suitable. There has been no evidence of non-compliance with any conditions or requirements.

[29] Mr Hammond said that the appointment of Debra Petersen was an important step for the applicant. She is highly experienced, knows what she is doing, and was able to answer all questions thoroughly.

[30] He said that as regards noise control, steps have been taken to deal with that issue. The Authority has seen the noise reports, and the report of the Acoustic expert. Council officers had attended some noise complaints, and their reports did not uphold those complaints.

[31] Mr Hammond noted that Mr Moulden was the closest neighbour who later withdrew his objection. He said that the Pirongia Deck roof would make a big difference to the reduction of noise. He re-iterated that the inclusion of the Village Green in the definition of the licensed premises was a necessary and responsible step in case people wandered down there. He said it was important to remember that the application for the Village Green was for incidental occasions, and not for large gatherings. Mrs Snowball had referred to a condition of the resource consent regarding the Village Green that she said everybody seemed to have forgotten about. That condition was:

“The use of the Village Green will be restricted to those recreational activities which an independent acoustic engineer can verify will meet the noise requirements.”

In response, Mr Hammond referred the Authority to page 5 of the Hegley Acoustic Consultant’s report of October 1999 which recommended that:

(i) No public address system be used.

(ii) No motor sport be allowed.

(iii) All events to be completed [during] daylight hours.

Authority’s Conclusion and Reasons

[32] The Authority is required to consider ss.22 and 23 as follows:

22. Criteria for renewal--- In considering any application for the renewal of an on-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 20 of this Act.

23. Decision on application for renewal---(1) After considering an application for the renewal of an on-licence, the Licensing Authority shall—

(a) Renew the licence on the conditions presently attaching to it; or

(b) Renew the licence on such different conditions (relating to any matters specified in section 14(5) of this Act) as the Licensing Authority thinks fit; or

(c) Refuse to renew the licence.

(2) The Licensing Authority shall not exercise its powers under paragraph (b) or paragraph (c) of subsection (1) of this section except in response to—

(a) An objection duly made under section 19 of this Act; or

(b) A report duly submitted under section 20 of this Act; or

(c) A request by the applicant.

(3) On renewing an on-licence, the Licensing Authority shall specify a date (being no later than 3 years after the date on which the renewal takes effect) on which the licence shall expire unless it is again renewed under this section.

[33] The suitability of the applicant is not an issue. It has proven to be a competent operator, and significantly neither the Police nor the Inspector have provided adverse reports. In fact the Inspector has made a number of visits to the premises to satisfy himself that the premises are operating correctly, as well as to investigate complaints from the objectors.

[34] Although there have been a number of complaints from the objectors about noise, these have not been upheld. Significantly, the nearest neighbour, Mr Moulden, who lives less than 30 metres from the premises, has withdrawn his objection. We note also, that the independent acoustic consultant has recommended that the only sport not to take place on the Village Green, is motor sport.

[35] There has been no evidence of misbehaviour on the premises. We agree with Mr Hammond’s submission that by engaging Ms Petersen, who brings a wealth of experience to the position, to run the premises, is a significant step in ensuring the dissipation of many of the problems perceived by the objectors.

[36] We accept, as Mr McCready said, that it is hard for objectors who hold genuine concerns, to mount a significant and sustainable objection. It is just as difficult for an applicant to respond effectively to general criticisms of being too noisy. Nevertheless, unless neighbours are prepared to provide details of when the breaches of the Act or the Resource Management Act occur and what action was taken, it would be difficult for them to overcome the threshold of factual information required to put the applicants to proof. Having visited the premises and seen it for ourselves we are satisfied that considerable progress has been made since we issued our previous decision on 26 September 2001.

[37] We said at paragraph 19 in DSL Investments Limited LLA PH 15/2002:

"Given both a suitable applicant and a Resource Management Certificate, as in this application, a liquor licence almost inevitably is granted under present legislative provisions. The tailoring of conditions in each licence to meet each particular factual situation is the responsibility of the Agency or the Authority. If the nature of the business changes, then any renewal of the licence can be challenged or an application brought under s.132 of the Act."

[38] That is the situation in the present application. We are satisfied that the applicant is suitable and it has a Resource Management Act Certificate. Mr Faris emphasised in his evidence that the applicant has complied with its resource consent, and there are no outstanding requirements or concerns. For completeness, we have also said on a number of occasions that the Authority has no jurisdiction to look behind the granting of that certificate.

[39] We are satisfied as to the matters to which we must have regard as set out in s.22 of the Act. The application for renewal is granted for three years. The application for variation to include the Pirongia Deck and the Village Green in the licensed premises is granted. The hours applied for the Pirongia Deck are also granted. In respect of the Village Green, we intend to take a more conservative approach, and restrict the hours to 11.00 am to 10.00 pm seven days per week. If more extensive hours are necessary, the applicant can apply for special licences. If a need for longer hours is established, then the applicant can seek a further variation at the next renewal of the licence.

[40] A copy of the licence setting out the conditions to which the licence is subject is attached to this decision.

[41] The licence will not issue until 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.

DATED at WELLINGTON this 16th day of July 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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