Linwood 2000 Limited, re [2003] NZLLA 81 (27 February 2003)

Last Updated: 20 February 2010

Decision No. PH 81/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by LINWOOD 2000 LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at 223 Linwood Avenue, Christchurch, known as "Linwood 2000"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at Christchurch on 30 January 2003

APPEARANCES

Mr D L Harwood – for the applicant
Mr M Ferguson – Christchurch District Licensing Agency Inspector – to assist
Sergeant J F Armstrong – NZ Police – to assist

Objectors

Mr W J Wyber – in opposition

Ms L C Major – for families of Linwood Trust and Linwood Community House –

in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by Linwood 2000 Limited pursuant to s.9 of the Act for an on-licence in respect of premises situated at 223 Linwood Avenue, Christchurch known as "Linwood 2000".

[2] The general nature of the business as described in the application is for a tavern with a restaurant. The proposed premises is set in the midst of a large, busy, suburban shopping centre, which is surrounded by residential properties. Close to the applicant’s premises, and on the same side of Linwood Avenue, are two other liquor outlets. One is a stand-alone off-licence and the other is a tavern. Immediately behind the proposed premises, on an adjoining property, is the Linwood Community House at 223A Linwood Avenue. It is owned by the “Families of Linwood Trust” [“the Trust”]. Access to it is by means of a shingle driveway that is part of the land of 223A Linwood Avenue. The driveway runs beside the premises at 223 Linwood Avenue. The Inspector’s report states that the applicant has an absolute right of way over that shingle driveway.

[3] A resource consent for use as a “café/bar and drive-thru takeaway” was granted on a non-notified basis. It was subject to a number of conditions. The applicant has applied to trade at any time on any day. One of the resource consent conditions states:

“There shall be no outdoor dining by tavern or café patrons after 10.00 pm Monday to Sunday.”

Otherwise, there is no restriction on the premises operating at any time on any day. The applicant states that it does not necessarily intend to operate all those hours. The purpose of the application is to provide flexibility to permit trading according to demand. The Inspector reports that the flexibility requirement is principally for the drive-through facility for food and non-alcoholic drinks. The applicant has applied for every bar to be designated “supervised”.

[4] The application attracted four objections. Three were from the objectors listed above and the fourth was from the Linwood Avenue Medical Centre. No representative appeared on behalf of the medical centre. The objection on behalf of Linwood Community House was filed outside the statutory time frame. Neither the Police nor the Inspector opposed the application.

The Evidence

[5] Denis Lawrence Harwood is the managing director of the applicant, Linwood 2000 Limited. He said the objective is to establish a restaurant with drive-through take-away food facilities. The restaurant will be similar in style to the Taco Bell restaurants in America and Australia. It will serve Mexican style food. Liquor will be sold in the restaurant only. Liquor will not be sold at the takeaway facility.

[6] Mr Harwood emphasised that the concept was new to Christchurch. For that reason it would not be competing with the nearby “Nuggets” bar, or any other licensed premises in Christchurch. The close proximity of the proposed premises to one of the busiest intersections in Christchurch means that its market will not be confined to the immediate locality. This is an unusual application. It is for a tavern, yet according to Mr Harwood the emphasis is on a restaurant with takeaway facilities.

[7] Mr Harwood referred the Authority to the Resource Management Act certificate which dealt with a number of matters affecting the neighbourhood and its inhabitants. He noted that the grounds on which the consent was granted were:

(1) Any effect on the environment will be insignificant.

(2) The proposal does not significantly contravene the objectives and policies of the Proposed District Plan.

[8] Mr Harwood referred to an objection by Mr Wyber. He said Mr Wyber had expressed concerns about behavioural problems associated with drinking, the social impacts of gaming, and the likelihood of it being a “topless bar or a belly dance review”. Mr Harwood said that there were no plans to add gaming machines to the business. He said that if they did, the machines would be under the stringent controls of the Responsible Gambling Act 2002, and the Christchurch City Council, and Department of Internal Affairs. It is our view that such machines would not be in keeping with the concept as described by Mr Harwood. To allay Mr Wyber’s concerns, Mr Harwood showed Mr Wyber the “Tulsi” restaurant and bar in the city because it is an example of one of Mr Harwood’s developments. Mr Wyber expressed satisfaction with the concept, although Mr Harwood later said that the licensed premises known as "Robbies" in Cranford Street, was the best example of what the concept would be like. Although he promised to consult others in the community, and then contact Mr Harwood again, he did not do so.

[9] Mr Harwood referred to the two objections from the Trust. He said the second objection was out of time. In respect of the first objection, he said that too many assumptions had been made about the proposal. When he approached the principal trustee and guarantor of the Trust, Mr David Parkinson, in 2000, it was Mr Parkinson who suggested that a restaurant concept “similar to Tuskers” would be ideal for the site. Mr Harwood said that the objector had been kept up to date at all times, and had been invited to discuss any issues with the applicant. However, it was not until the objection was filed that Mr Harwood said he had any indication of any dissatisfaction.

[10] Mr Harwood said that the resource consent required the right of way to be sealed and landscaped. It was not a car parking area, and would be used for access to the drive-through facility of the premises. He submitted that the constant movement of the public through the area would eliminate any crime or damage.

[11] Mr Harwood referred to the Inspector’s report where the Inspector suggested a possible 4.00 am closing time. Mr Harwood said that it was his intention that the restaurant/bar be available during the night for shift workers, and to provide early breakfasts for those who require them. While a 4.00 am closure was possible it would place severe limitations on the proposed business.

[12] He emphasised that trained professionals of the Christchurch City Council have addressed all the matters, which should be of concern to the community. He added that the applicant had also hired the best firm in the South Island to advise it on noise issues.

[13] Ms Lucille Constance Major is a Community Volunteer who appeared on behalf of the Trust and the Linwood Community House Incorporated (the “Community House”). The Community House is owned by the Trust. She said both groups oppose the application. Ms Major lives on Linwood Avenue, six doors away from the proposed premises.

[14] Ms Major said that the Community House and the Trust were concerned at whether the applicant, through Mr Harwood, had sufficient experience to operate licensed premises. She noted that the application did not provide any information as to Mr Harwood’s experience in running licensed premises apart from his management of student bars in the 1970’s. On the other hand Mr Harwood stressed that responsible managers would be employed.

[15] The Community House and the Trust were also concerned that they had not been consulted about the change in use of the premises. In particular, although the proposed use involves their property they had not given any consent in respect of that involvement. Ms Major also referred to a petition opposing the grant of the resource consent on 2 September 2002 on the grounds that there had been no notification, and no consultation before the consent was granted.

[16] Ms Major also raised a number of other matters relating to resource consent issues such as no allowance had been made for a pedestrian right of way onto the Community House property, safety issues for users of that property, traffic congestion, and parking. She advised that a proposed change to the zoning of the area under the District Plan has been objected to but has not yet been considered. We point out that pursuant to s.9(1)(e) of the Act we cannot consider an application unless it is “accompanied by a certificate by the local authority that the premises meets the requirements of the Resource Management Act 1991 ... .” The applicant has such a certificate, and therefore we do not have the jurisdiction look behind it.

[17] Ms Major said that they were concerned that the application for “open all hours” had not been justified by any research. It was their view that the applicant should apply for specific hours that it could justify.

[18] Ms Major referred to the various community groups, including a church, that use the premises for their meetings during the day, and in the evenings. She said the meetings of those groups would be disturbed by music from the applicant’s bar as well as vehicles and people going in and out of the property. The Community House was a charitable organisation. It does not have the resources to double-glaze its windows or to provide security or protection for the building or the users of its facility, particularly at night. We note that the resource consent has imposed a number of noise conditions including preventing the playing of amplified music after 10 pm.

[19] Ms Major expressed concern at the impact that a third liquor outlet would have on a low socio-economic community. She said that the users of the Community House would not feel safe having to pass an open liquor establishment.

[20] Ms Caroline Brunt owns the bottle store next to the applicant’s proposed premises. She is not a resident of Linwood but resides at New Brighton. Mr Wyber called her as a witness. Her evidence was that it would be uneconomic to establish another licensed premises in the area. Ms Brunt said that although her business has been going seven years it was getting too hard to operate, and therefore was for sale.

[21] William James Wyber lives approximately 380 metres from the proposed premises in Buckleys Road. He has been a long time resident of the area. Mr Wyber, in very detailed submissions, raised many issues and concerns. He pointed out that Linwood was a decile 2 suburb, and he requested that the inhabitants be protected from the effects of another liquor outlet. He expressed concern at the possibility of another liquor outlet providing yet more gaming machines, and their effects on the community. He noted that the nearby “Nuggets” casino and bar, has 18 machines.

[22] Mr Wyber raised a number of other matters that are outside the jurisdiction of this Authority, and fall within the purview of Resource Management Act and the Employment Relations Act. Those matters related to traffic, the displacement of the Community House, and the comfort, welfare, and security of staff employed at the proposed premises.

[23] Mr Wyber also expressed concern at the need for another liquor outlet, its viability and effect on other businesses, as well as the possibility of an increased risk of vandalism to the Community House. The question of whether a liquor outlet is needed, was removed from the legislation with the repeal of the Sale of Liquor Act 1962. It is not an issue under the Sale of Liquor Act 1989. Mr Wyber also sought a number of conditions to the proposed licence which are outside the Authority’s jurisdiction under s.14 of the Act.

[24] Mr Wyber suggested that the proposed premises should not be permitted to trade on the sacrosanct days referred to in s.14(2) of the Act. As the applicant is proposing to establish a tavern with a restaurant in which the principal business will be the sale of liquor then that subsection will apply.

[25] One of Mr Wyber’s principal concerns related to the suitability of the applicant through its sole director, Mr Harwood, and whether the applicant should be given the privilege of a liquor licence. Mr Harwood is the sole director of three other companies that have applied for liquor licences. We have recently granted one of those applications in respect of Roxy’s Bar & Nightclub Limited LLA PH 33/2003. In that case we expressed our confidence in Mr Harwood’s suitability. We have heard nothing further in this case that would cause us to change our view. We note, that in respect of the present application, neither the Police nor the Inspector has challenged Mr Harwood’s suitability.

Authority’s Conclusion and Reasons

[26] 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.

[27] We said in Roxy’s Bar & Nightclub Limited LLA PH 33/2003 as regards trading hours:

"[17] The Authority has the responsibility for the tailoring of conditions of each licence to meet each particular factual situation. In this case, the hours of trading are a live issue. It is our view that the applicant company has not established that it will need to utilise a 24-hour licence. Furthermore, hours beyond 3.00 am for a tavern are out of keeping with taverns in similar locations.

[18] We believe that a conservative approach should be adopted at first instance. This is based on our experience of the problems that have arisen when liberal hours have been granted. There are a number of Agencies throughout the country, which are trying to peg back operating hours. How a licence will be utilised is always a cause for concern. In our experience the more liberal the hours, the greater the chance of antisocial behaviour. It will be up to the applicant company to show after a year’s trading, that extended hours are necessary. The use of special licences may also be a useful guide."

[28] We are advised that the neighbouring tavern “Nuggets” has a closing time of 3.00 am. Despite Mr Harwood’s reservations about the viability of a closing time of less than 24 hours, and the Inspector’s recommended closing time of 4.00 am, we decline to follow his recommendation. It is our view that the same conservative approach that we took in Roxy’s Bar & Nightclub Limited should also apply in the present case.
[29] As regards the concerns expressed by Mr Wyber and Ms Major about the potential effects of the proposed premises on the community, possible anti-social behaviour, and the generation of noise, we refer to Cayman Holdings Limited LLA PH 145/2001 in which the Authority stated:

“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 Kawerau District Council.”

[30] In other words, those concerns expressed by Mr Wyber and Ms Major will not in themselves be sufficient to prevent the grant of a licence. As regards noise, we have said in Paihia Saltwater (2001) Limited LLA 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.”

[31] Therefore, the essential issues to be determined by the Authority in this case relate to the suitability of the applicant, and the days and hours of operation.
[32] It is important to point out that a liquor licence is granted in the first instance for twelve months. If the community have any concerns about the operation of the premises then those concerns can be addressed in light of the available evidence at the time when the licence is renewed. That also means that there is a clear incentive for the applicant to comply with the conditions of its resource consent, and also the original concept as detailed to the Authority.

[33] We note that when the applicant filed its application the style of the premises was described as a “tavern with restaurant”, and a “supervised” designation was sought for every bar. The public notice described the premises as a tavern. However, the resource consent was granted for a “café/bar and drive thru takeaway”. Condition 8 of the resource consent referred to “tavern or café patrons”. During the hearing Mr Harwood assured this Authority and the objectors that the proposed premises would be a restaurant/bar similar to “Robbie’s” in Cranford Street. In light of those factors every bar will be designated “supervised”. At the hearing Mr Harwood was invited to consider the imposition of a condition similar to conditions stipulated for a restaurant. Mr Harwood wrote to us on 19 February 2003. He said:

“We are totally in agreement with the suggestion that the Licence should permit the service of liquor only when the kitchen is open and food is being served. The service of food is our primary operation with the service of liquor ancillary to that.”

[34] We have no hesitation in imposing such a condition. We do not wish to see the situation arise where the majority of patrons resort to the premises primarily to drink. Mr Harwood has portrayed the principal purpose of the business as being akin to that of a restaurant; any significant departure from that portrayal may reflect unfavourably on the applicant’s suitability.

[35] We are satisfied as to all the matters we are required to have regard to under s.13 of the Act. In particular, we are satisfied that the applicant is suitable, and has a Resource Management Act certificate authorising the proposed activity. Therefore, 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.
[36] The hours will be as follows:

Monday to Sunday 7.00 am to 3.00 am the following day.

[37] A copy of the licence setting out the conditions to which the licence is subject is attached to the decision.
[38] 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. We note that the Inspector will provide a full report upon a full inspection of the completed premises. The applicant is not entitled to sell liquor until the licence issues.

[39] 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 27th day of February 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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