Landl, re [2004] NZLLA 228 (5 April 2004)

Last Updated: 2 March 2010

Decision No. PH 228/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ANTHONY JOHN LANDL pursuant to s.9 of the Act for an on-licence in respect of premises situated at Concession Site G, Two Mile Bay Reserve, Taupo known as “2 Mile Bay Sailing Centre”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAUPO on 8 March 2004

APPEARANCES

Mr R H Bryant - agent for applicant
Mr G A Singer - Taupo District Licensing Agency Inspector – in opposition
Constable N T McLaughlin - NZ Police - in opposition
Mr E J Foley - Taupo District Council Senior Environmental Health Officer
- in opposition
Ms D A Meertens – Toi Te Ora Public Health - in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by Anthony John Landl pursuant to s.9 of the Act for an on-licence in respect of premises situated at Two Mile Bay Reserve, Taupo known as the “2 Mile Bay Sailing Centre” (the Sailing Centre).

[2] The applicant has been operating the Sailing Centre which hires sailing boats to patrons on an hourly basis at the site for approximately 15 years. This is the principal activity and the focus of the applicant’s business.

[3] In addition to the availability of pre-packaged food there is also a barbecue on the deck where, from time to time, small functions are held, and barbecued meals are available. The size of the premises is very small, and there is insufficient room on the premises for large functions. The barbecue is a domestic model. Consequently, it is incapable of turning out large quantities of food. The deck is presently covered by an awning which has transparent sides that can be lowered to protect patrons from the cold winds.

[4] The applicant has a Council Licence to Occupy under the Reserves Act 1977 dated 20 October 1998 in respect of the site (“Concession G”) on which the premises are situated. That licence restricts the applicant’s hours of operation to 8.00 am to 8.00 pm daily.

[5] Following a resource consent hearing on 15 October 2002 before a Commissioner, the applicant was granted a consent to sell liquor on a limited and restricted basis. The interpretation of the Commissioner's decision is fundamental to the way in which the on-licence can be granted. It seemed to us that the applicant has misunderstood the terms upon which the application was approved.

[6] The wording of the consent allowed the applicant to serve alcohol as a function of the cafe operation in accordance with the terms of the application.

[7] The terms of the application can be found at page one of the decision. This was "to permit the sale and consumption of alcohol as part of the sale and consumption on the premises of pre-packaged food and beverages to patrons and guests as an adjunct to the major existing activity on the site. The existing activities centre around the operation of the 'sailing centre' which hires sailing boats to patrons on an hourly basis. It is that activity which is the principal activity and the focus of the business. The premises from which this operation takes place are very small, and consist of a kiosk which serves as a 'ticket office' for the venture but which sells coffee, soft drinks, and packaged food which is consumed at tables on a deck which adjoins the office."

[8] The application was granted to allow alcohol to be sold as part of the operation described above. What it clear is that the consent was not to allow the premises to be used as a function centre or a licensed cafe or a place to which members of the public might resort. It was for patrons and their guests only. The premises does not even qualify as a cafe on any basis even though the certificate issued pursuant to s. 9(1)(e) of the Act refers to it as a cafe. The premises are very small and there is no kitchen or storage capacity.

[9] The Authority has issued a decision on what may be expected at a cafe. See Scott Lyall Taylor v Doner Kebab Café Limited LLA PH 327-328/2002 where we said:

[52] By contrast, a café means in our view, any premises used principally for the provision of food and non-alcoholic drinks. If a licence is granted then the provision of liquor will be complementary and secondary to the main purpose. In a café the range of food may extend from cooked and continental breakfasts, to snack meals, to light lunches, to afternoon teas, to pre-theatre bites and suppers. There might well be a strong emphasis on croissants, open sandwiches, paninis, muffins, and the like. Clearly there will be a good selection of coffees, standard and exotic teas, and juices. People will be attracted to the premises for the atmosphere, and the selections of food and non-alcoholic drinks. A book entitled “Wellington’s Café Culture” produced by William Watson gives the individual profile and philosophy of 52 cafés in Wellington.

[10] This interpretation of the Commissioner's decision was supported by the representatives from the District Council and confirmed by the Commissioner's final condition which was that no sign could be erected that advertised that food or drink was available on the premises. In other words the sale of liquor was to be restricted to patrons and their guests.

[11] Although the consent allowed the sale of liquor between 8.00am and 8.00pm (the Sailing Centre opening hours), we were concerned as to how any licence could be worded. In particular our concerns related to whether the premises should be designated, and how casual members of the public could be excluded from using the facilities.

[12] Public notification of the application attracted one objection, but that objector did not appear at the hearing. We have said in the past that objections have little probative value if those making objections are not able, or prepared to affirm, or swear to the truth of what they are saying. Opinions or concerns can only be tested by way of cross examination.

[13] The application was opposed by the Police, the Medical Officer of Health, the Senior Environmental Health Officer, and the Inspector for the Taupo District Licensing Agency principally because of concerns regarding the consumption of alcohol in connection with water-borne activities.

[14] The Inspector was apprehensive that the premises will be operated as a tavern serving “casual drinkers” which in the Inspector’s opinion is not permissible under the Resource Consent.

The Application

[15] Anthony John Landl is the owner of the Sailing Centre. He and his son Torbin both hold launch masters certificates, Yachting New Zealand sailing instructor qualifications, and they have also completed New Zealand Yacht Squadron race training programmes. Torbin holds a General Manager’s Certificate under the Sale of Liquor Act, and Mr Landl is waiting for his certificate to be issued.

[16] He said that the Concession Agreement between the Taupo District Council and himself gives him the right to establish a hire business. He has six catamarans, six concept class yachts, 16 keel boats, six wind surfers, four kayaks, two rowing dinghies, as well as a rescue launch and a rescue tender. The business operates under a Resource Consent issued by Environment Waikato which has a term of 35 years. Mr Landl said the Resource Consent granted by the Taupo District Council permitting him to sell liquor was granted following a fully notified application.

[17] Mr Landl said that over the past five years the business had been under pressure by tourists and locals to provide a venue where all could sit and enjoy the surroundings any time during the day with a cup of coffee, cake or substantial food, or a wine, or beer. He said that there would not be a bar, and any alcohol would be sold by the bottle or can from a fridge behind the counter. The Authority noted that when it visited the site that there was very little room for the storage of large quantities of alcohol.

[18] Mr Landl said that he and his staff were often called upon to commence a search and rescue on the lake. They had strong support from the Taupo Coastguard, and over the past few years, they had successfully carried out many rescue missions where lives were in jeopardy.

[19] Mr Landl said that they screened hirers as best as they could. It was part of their standard procedures. If there is any evidence that a person had been drinking alcohol that person was not allowed to hire any of the boats. He produced a copy of the existing signage displayed at the booking desk and other parts of the site. That sign states:

“2 Mile Bay Sailing Centre

Alcohol and water sports do not mix

For your safety and enjoyment

We reserve the right to refuse hire if we feel alcohol is being consumed by the hiring group”

[20] Mr Landl said that it was not intended that the premises would be operated as a tavern. He expected that liquor may be requested by adults waiting for their children to complete their sailing, by adults after they have been on the lake, and also by people who have walked along the lake front before heading back to town. He said they already offer coffee, tea, soft drinks and light food.

[21] Mr Landl said that they have very limited facilities and they certainly would not be catering full meals except from the barbecue when required by groups. It was intended to start with the existing menu and amend it, after a settling in period, according to the different seasons and demand. The sample menu submitted with Mr Landl’s application was:

Expresso Coffee 3. 50

Biscotti 1.00

Sweet Muffin 1.50

Slice of Cake 2.50

Savoury Muffin 1.50

Pizza Slice 3.00

Anti Pasta Platter 8.00

BBQ Function Menu 10.00

Selection of meats served with green salad

Cold Drinks

Wine and Beer

[22] As we have already stated, this menu would not under any circumstances be viewed as appropriate for a café. The problem with any on-licence is that it enables liquor to be sold to the public although the Authority may restrict the persons or types of persons to whom liquor may be sold or supplied pursuant to s.14(5)(h) of the Act. It is clear that such an on-licence will not require any designation because the sale of liquor in such a restricted way will not become the principal aspect of the business.

[23] Mr Landl said that they have support from the residents of Taupo who want a relaxing site overlooking the lake for private functions. There have been many inquiries to use the premises for such purposes. When he gave evidence about the demand from tourists and locals and private functions, Mr Landl displayed a fundamental misunderstanding of the restrictive nature of the resource consent. It is because he tends to push the boundaries of any consent that we have serious concerns about the way such a licence will be operated.

[24] Mr Landl produced a copy of the Town Planning Compliance Certificate which states as follows:

“This letter serves as a certificate for the purpose of s.9(1)(e) of the Sale or Liquor Act 1989 in respect of an application to operate an On-Licence for the purpose of selling liquor from the premises for consumption on the site.”

This certificate relates to a proposal to operate a Sailing Centre with associated café on the premises at Two Mile Bay Reserve, State Highway One, Taupo, being legally described as SO 60456 and known as the “Two Mile Bay Sailing Centre” (sic).

The proposed use of the premises by Anthony John Landl meets the requirements of the Resource Management Act 1991 by virtue of the Resource having been granted. The property is situated in the recreation zone of the Transitional Taupo District Plan and the Residential Environment of the Proposed Taupo District Plan where Places of Entertainment are provided for as a discretionary activity. A Resource Consent was granted on 24 October 2002 for the ancillary café.

Signed for and on behalf of the Taupo District Council

Alan Moss, Manager: Resource Consents

On this 2nd day of December 2002”

[25] Mr Landl also produced a reference from a Mr David Steele who is the Chairman of the Lake Taupo Marketing Advisory Board. Mr Steele said that Mr Landl was a responsible operator and an excellent role model for tourism businesses in Taupo. Mr Steele supported Mr Landl’s application for a liquor licence.

[26] Mrs Williamson-Orr QSO JP said that she has known Mr Landl for some 34 years. During her term of 15 years as a district mayor she was aware of Mr Landl’s enthusiasm for developing entrepreneurial ventures. In particular, those ventures promoting local tourism opportunities which he pursued with a determination to achieve his goals. Mrs Williamson-Orr also said that she was aware that Mr Landl was sensitive to environmental concerns. He believed in development that could proceed in tandem with care for natural assets. Nevertheless she did say that if Mr Landl had a fault, it was impetuosity and frustration from any undue delay in compliance processes, which she thought was understandable.

[27] Torbin Claude Landl is the son of the applicant. He gave evidence without a brief and only after questions had been asked about the style of the operation, and whether a designation would be necessary. It was obvious that his remarks were couched to support the issue of restaurant style licence without a designation. He said that they envisaged a small licensed café operating from the site rather than a tavern. He said that the site has a seating capacity of 40-45 people. They intended to sell snack food, nachos and the usual café food. He said they intend to employ two more people. There would be someone to make coffees, two would be dedicated to preparing and serving food but there would not be a chef or a cook because all they needed was a food preparer. We were not inclined to accept these statements at face value. We repeat that the premises are limited in size and capacity as to what may be offered. He said that the food would be more substantial than at present, and they intend to install another fridge on the site. It was intended to separate the boat hirers from the café patrons so that both were not in the same queue.

[28] Constable Nichola Temple McLaughlin is the liquor licensing officer for the Taupo Police. Constable McLaughlin said that at present the Resource Consent and Land Owners Consent by the Taupo District Council both limit the applicant’s hours and days of operation to Monday to Sunday from 8.00 am to 8.00 pm. Constable McLaughlin said that she opposed the application on the ground that the consumption of alcohol was incompatible with the primary business of the Sailing Centre. She said that most people who are attracted to this sort of activity were young people. The mixing of alcohol and water sports was not recommended at the best of times, especially when those taking part were likely to be unfamiliar with the hired craft. Constable McLaughlin said that their judgement could be rapidly clouded by the consumption of alcohol prior to sailing. Constable McLaughlin said Lake Taupo was dangerous with frequent weather changes and sailing conditions. The water temperatures could be very cold. It made for an unforgiving environment in which a person could rapidly succumb if affected by alcohol.

[29] Constable McLaughlin said the consumption of alcohol before engaging in a water based activity is further aggravated in this case because often the hirers of the craft were unskilled. She said as part of host responsibility the applicant must ensure persons should not be able to purchase and consume liquor before using the craft. Failure to enforce this responsibility could seriously place many persons hiring the craft in danger of having to be rescued while out on the water. Constable McLaughlin said that Mr Landl’s evidence regarding his experience in search and rescue, and the steps that he was proposing to take to ensure that people affected by alcohol did not hire craft, had gone a long way to easing her concerns.

[30] Grant Allan Singer is a Liquor Licensing Inspector for the Taupo District Licensing Agency. He said that he stood by his report of 5 September 2003 in which he expressed his concern that the premises would be operated along the lines of a tavern serving “casual drinkers” which was not permissible under the Resource Consent. Mr Singer referred to his recommendations on page 7 of his report in which he stated:

“1. The Taupo District Licensing Agency supports the matters in opposition raised by both the Taupo Police and Taupo District Council’s Senior Environmental Health Officer in regard to water safety matters combined with alcohol consumption.

2. The hours stated in both the ‘Licence to Occupy’ and the Resource Consent are suitable for an operation such as this and I recommend that some conditions are placed on this licence pertaining to alcohol consumption mixed with water sports to deal with safety issues, because I have a concern that the premises will be operated along the lines of a tavern serving ‘casual drinkers’ which is not permissible under the Resource Consent.
   
3. I stress that the liquor licence should follow the lines of the Resource Consent which states that the main activity of the site is a Sailing Centre and the sale and supply of liquor is an ancillary activity.”
   

[31] Dawn Audrey Meertens is employed by Toi Te Ora Public Health as a health promoter. She has been employed by that service since October 1998.

[32] Ms Meertens said that she had grave concerns for the safety of young people (and older persons) being served alcohol at a water sports activity centre prior to taking to the water.

[33] She said no amount of host responsibility, that is, non service of alcohol to intoxicated persons, availability of food, and low alcohol beverages, would ensure that the hirers would be safe after consuming alcohol. That was not to say that non consumers were going to be totally safe either. The risks increased once one has consumed alcohol. Responses to danger are slower, and the notion of “invincibility” may occur. Ms Meertens recommended that the following conditions be included in any licence that was issued:

• [a] “No alcohol could be sold to any person prior to hiring sailing equipment.
  
• [b] No equipment could be hired out to any person who has consumed alcohol on the premises or off the premises.
  
• [c] A duty manager is to be on the premises at all times observing clients, not serving drinks where he or she may remain behind the bar...
  
• [d] Food of a substantial nature is to be available on the premises at all times.”
  

[34] Ms Meertens agreed that the premises could be operated safely if the proper procedures were put in place.

[35] Ms Meerten’s suggested conditions deserve some comment. We note that Mr Landl has extensive experience in operating the Sailing Centre apparently without any serious incident. His evidence that he actively supports the Taupo Coastguard, and is also supported by them, was not challenged at the hearing. Mr Bryant submitted that the conditions suggested by Ms Meertens regarding no alcohol prior to sailing, and no equipment to be hired to an intoxicated person, has already been addressed by Mr Landl. Ms Meertens third suggested condition that a duty manager is to be on the premises at all times observing clients not serving drinks is already provided for by s.115(1) of the Act whereby a manager “must be on duty and responsible for compliance with this Act and the conditions of the licence.” A manager who ignores that duty is putting his or her General Manager’s Certificate at risk. It is pertinent to point out that s. 115 applies when liquor is being sold to the public. However, in this case the sale of liquor to the public is not permitted by the resource consent.

[36] The fourth condition suggested by Ms Meertens namely that food of a substantial nature is to be available on the premises at all times is a greater requirement than s. 14(5)(b) of the Act which simply requires that food be available. That is a standard condition of an on-licence. Mr Torbin Landl stated that he intends to increase the menu should the application be successful. As indicated we have reservations about such a claim.

[37] It is our view that the first two conditions suggested by Ms Meertens are water safety issues. They do not fall within any of the conditions that can be imposed pursuant to s. s.14(5) of the Act, not even under paragraph (e) of subsection (5) whereby the Authority may impose a condition “aimed at promoting the responsible consumption of liquor”.

[38] Eric John Foley is the Senior Environmental Health Officer of the Taupo District Council. He has over 30 years experience as an Environmental Health Officer. He has held his current position for some 10 years.

[39] Mr Foley’s concern related to the dangers of mixing alcohol and water sports. He said that Lake Taupo was an unforgiving environment subject to rapid change in water conditions. In February 2003 the average temperature of the lake was 17oC. The surface temperature of the lake between May and November in the 2001/2002 period was 11-12oC. Some inshore areas have been measured at 8oC in cold weather. He said that should an accident occur during the colder months, a person in the water would rapidly suffer from hypothermia, particularly if alcohol was consumed prior to sailing.

[40] Mr Foley produced statistics from Water Safety New Zealand that showed on average each year over the last five years 18 people have drowned in situations where it was known that alcohol was involved. One third of the drownings involving alcohol were immersion accidents where the victim had no intention of entering the water, and ten per cent were boating related. Mr Foley said that from his observations many of the Sailing Centre clients were young people. He was fearful of the consequences should they consume alcohol prior to sailing, and suffer an accident.

[41] Mr Foley said that Mr Landl’s Resource Consent number 00337 allowed for a kiosk for the purpose of renting watercraft. Resource Consent number 020385 covered the operation of the café activity. It permitted the consumption of food and refreshments by patrons only as an adjunct to the principal activity, which is the hiring of sailing boats. It was never intended that the café would sell to passers-by. We agree with his interpretation.

[42] Mr Foley said that at a meeting with the Council staff in December 2002 Mr Landl advised that his dream was to provide a venue where passers-by could drop in for a drink. In a letter dated 16 February 2003 addressed to the Council Mr Landl referred to the ability of his business to function “effectively as a licensed café”. Mr Landl’s newspaper advertisement referred to the Sailing Centre being a BBQ and function venue. The Sailing Centre’s business card states “for functions, licensed café ...”. An item in the “Thumbs Up” column of a local newspaper referred to the Sailing Centre as being a venue for a wedding. Mr Foley had personally witnessed the centre operating late at night although he did not say at what time or under what circumstances.

[43] Mr Foley said that he was concerned about Mr Landl’s willingness to comply with any conditions attached to a liquor licence should one be granted. He referred to a condition of Mr Landl’s Resource Consent that prohibited advertising signs for the café. Despite this condition a prominent carved wooden sign was very clearly visible outside the premises, and he produced a photograph of it. However, when the Authority visited the site immediately after the hearing the sign had already been removed, and attached to the interior of the kiosk. Mr Foley said it would appear that Mr Landl preferred to put an idea into practice, and then cope with any consequences. Mr Landl was operating the café for some time before the Council’s Environmental Health Officer became aware of it. An inspection was carried out, and a requisition was sent to Mr Landl seeking his compliance with the Food Hygiene Regulations. Mr Landl said that the breach had now been rectified.

[44] It was Mr Foley’s concern that if an on-licence were issued then the café would rapidly become a de facto tavern because it was not possible for a Council Officer to differentiate between a bona fide sailor and a casual drinker.

[45] In his closing submissions Mr Bryant said that the applicant would comply with the object of the Act, and make every effort to reduce liquor abuse. This would be achieved through good host responsibility practices. He submitted that the applicant already checked all hirers to ensure that they had not consumed alcohol. That was in conformity with the current policy of the Sailing Centre.

[46] Mr Bryant produced copies of the signage that would be displayed in the premises if the application were successful. Those signs covered alternative transport options, the Sailing Centre’s policy on requiring identification, and the host responsibility policy. Mr Bryant said that the applicant was fully aware of the treacherous nature of the lake, and he referred to the fact that Mr and Mrs Landl and their sons Torbin and Jean all hold first-aid certificates. He reiterated the relationship that both Mr Landl and Torbin have with the Taupo Search and Rescue organisation, and that both Mr Landl and Torbin hold seamanship qualifications.

[47] Mr Bryant said that the Commissioner was convinced, when granting the Resource Consent, that a licensed café was quite in order for the site after he had considered a number of objections opposing the sale and consumption of alcohol by the Sailing Centre. As we have indicated in paragraphs [5] to [10] above this submission is totally incorrect.

[48] Mr Bryant submitted that because the applicant had built up the business over 15 years it was unlikely that he would jeopardise it just to sell a can of beer. Mr Bryant said all customers were required to register at the counter in the kiosk before they could gain access to the pontoon. Therefore, any designation imposed on the premises would be detrimental to the primary purpose of the business.

[49] Mr Bryant submitted that the liquor ban policy was not relevant to the activity which was taking place within the building, even though it was on Crown land. He said it was different if the patrons stepped outside the defined area of the premises with alcohol in their possession because it then became a Police matter.

[50] Mr Bryant said that Mr Landl intended to become a signatory to a local liquor accord if his application was granted.

[51] Mr Bryant submitted that the suitability of the applicant had not been questioned. Neither the Medical Officer of Health nor the Police had objected to Mr Landl’s suitability. On the other hand, Mr Foley gave examples where the applicant had breached other conditions and rules imposed by the Council.

[52] Finally, Mr Bryant submitted that to refuse this application on the grounds of water safety issues would set a precedent for all the water wise activities in New Zealand. A refusal would have a similar effect to that of the decision in Lopdell v Deli Holdings Limited [2002] NZAR 227 which will have severe ramifications for certain off-licences throughout the country as those licences came up for renewal.

The Authority’s Conclusion and Reasons

[53] In considering any application for an on-licence the Authority is required to have regard to the following matters pursuant to s.13(1) of the Act. Those matters are:

• [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 will 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 services other than those directly related to the sale or supply of liquor and food; and if so, the nature of those goods and services.
    
• [g] Any matters dealt with in any report made under s.11 of this Act.
  

[54] The issues in this case were whether an on-licence should be issued to a business that is concerned with the hiring of sailing craft, and whether the Resource Consent restricts Mr Landl to serving alcohol only to patrons of the Sailing Centre and those people accompanying the patrons.

[55] Suitability is not a serious issue in this case. Neither the Police, nor the Inspector, or Ms Meertens on behalf of Toi Te Ora Public Health challenged Mr Landl’s suitability. Mr Foley faintly raised the issue of suitability. He suggested that Mr Landl might choose to ignore the conditions of a liquor licence if it were granted because he had ignored the resource conditions regarding the carved wooden sign, and he had established and operated his café before complying with the Food and Hygiene Regulations. Those points were not developed sufficiently to enable us to consider Mr Landl as being unsuitable to be the holder of a liquor licence, although we continue to retain a lingering concern as to whether he will honour the restrictions imposed by the licence and the resource management consent.

The First issue

[56] The one issue that all agencies were concerned about was the alleged danger arising from the mixing of sailing and water sports with a licensed café.

[57] This issue is not unknown to the Authority. See for example Polynesian Pools Limited LLA 763/93, Waiwera Property Owners and Residents Association LLA 2338/94, and the decisions involving Zentrum Holdings Limited at paragraph [5] of LLA PH 322/2001. In the Waiwera Property Owners and Residents Association decision for example, a student who had been affected by the consumption of alcohol had drowned at the Waiwera Pools in the month before the hearing. The Authority reserved its decision pending the outcome of the Coroner’s report, and to allow for further submissions to be made on matters arising from that report. Extensive submissions were made from the Medical Officer of Health on the current medical research at that time on the combined affects of alcohol and hot water bathing. The Coroner’s Report found that the student had drowned following an escapade when he had used a hydroslide tower that had been closed and subsequently he suffered concussion before entering the water. After careful consideration of the evidence, and the health and safety risks associated with the combination of alcohol and hot water bathing, the Authority said that it was not persuaded to allow the appeal on those grounds alone. It allowed the appeal against the granting of a special licence on the grounds relating to the suitability of the company’s managing director and the nature of the occasion. It noted at page 6 of its decision:

“There are many examples in New Zealand and overseas of liquor being served adjacent to bathing pools - including hot pools - in the grounds of licensed hotels or pool complexes such as the Polynesian Pools in Rotorua. At such places in New Zealand where there is responsible management and supervision no harmful consequences have been reported to this Authority.”

[58] In Zentrum Holdings Limited (supra) the applicant operated the Waiwera Thermal Pools complex at Waiwera, which is one of the largest in the country. The Authority granted the applicant an on-licence for a restaurant for the hours of Monday to Sunday 11.00 am to 10.00 pm. The restaurant was located within the pools area and readily accessible from the pools. The objector’s principal concern was the availability of alcohol to persons swimming or relaxing in hot thermal water.

[59] In the present case the argument is concerned with the effects of cold water and possible hypothermia aggravated by the consumption of alcohol. Statistics from Water Safety New Zealand show that of the 92 drownings in the past five years involving the consumption of alcohol none of those drownings were related to boating.

[60] While the concerns of the agencies were properly brought before us we have to look at the broader picture. Since the Polynesian Pools Limited decision the number of cafés and bars that have been established beside water venues such as beaches, pools, harbour wharves, and on cruise vessels has grown considerably. There are also many yachting clubs around the country that have liquor licences. It is worth noting that in granting hours for any club licence the Authority is required, pursuant to s.60 (4)(a) of the Act, to have regard to the times at which the premises is being used for the purposes of the club, for example yachting in the case of yacht clubs. There has been no evidence that we are aware of where the location of licensed premises beside water venues has contributed to an increase in drownings or for that matter from people imbibing alcohol on cruise vessels.

[61] We therefore are not persuaded that granting a liquor licence to Mr Landl for the Sailing Centre would be any less appropriate than any of the other water based venues that are licensed to sell liquor, particularly as liquor cannot be sold to the public.

The Second Issue

[62] This issue relates to the terms of the Resource Consent. The Commissioner’s decision states that:

Consent is granted, therefore, pursuant to the provisions of s.104 and s.105 of the Resource Management Act 1991 for the applicant to serve alcohol as a function of the café operation in accordance with the terms of the application at the Sailing Centre being Concession Site G at Two Mile Bay, Taupo Subject to the following conditions.

1. The hours of operation shall be at times when the Sailing Centre is open to the public but not outside the hours 8.00 am to 8.00 pm daily.
   
2. The serving of alcohol, as a part of the operation of the food and beverage service, for which consent is hereby given shall be undertaken entirely within the existing premises and no tables, chairs or other furniture designed for the use of patrons of the premises shall be permitted other than within the existing buildings. Further, no food or drink shall be taken on to or consumed on the walkway or the pontoon.
   
3. The consent holder shall not be permitted to erect any sign that is visible from any public place that advertises that food or drink are available on the premises.”
   

[63] Mr Landl had advised the Council that he wished to provide a venue for passers-by to have a drink, and he wanted to function as a licensed café.

[64] Mr Nigel McAdie, Compliance officer – Planning, Taupo District Council, sent a letter on 19 December 2003 in which he reminded Mr Landl that “the kiosk should not be used for activities which are not adjunct to the activity on site, that of hiring sailing boats to patrons on an hourly basis.” And also within the same letter, “The consumption on the premises of pre-packaged food and beverages to patrons and guests is only permitted as an adjunct to the hiring of sailing boats.” And further, that “no sign can be erected that is visible from any public place that advertises that food or drink are available on the premises.”

[65] The Inspector’s report of 5 September 2003 incorrectly states that the applicant was “granted a consent on 24 October 2002 for a land use to operate a licensed café from the premises ...” The Inspector said on page 4 of his report, “I stress that the liquor licence should follow the lines of the Resource Consent which states that the main activity of the site is a Sailing Centre and the sale and supply of liquor is an ancillary activity.”

[66] In Collins Concise dictionary, New Revised Edition, adjunct is defined as -

1. Something incidental or not essential that is added to something else.

...

4. Added or connected in a secondary position.

The meaning of ancillary is given as -

1. Subsidiary

2. Auxiliary; supplementary:

3. Subsidiary or auxiliary thing or person.

[67] It is clear from various references throughout the Commissioner’s decision that the serving of alcohol was limited to patrons involved in the sailing activities, and their guests. For example at page 7 it states:

“The department’s opposition to the proposal “to operate a licensed café from the “Two Mile Bay Sailing Centre”(sic) was based on what Mr Walker called “insidious cumulative changes”... He thought that the application under consideration represented a further cumulative change which was significant in altering the nature of the operation.”

At page 8:

“Mr Landl described the application as “the last piece of the jigsaw”. It simply seeks permission to serve alcohol on the premises as part of the sale and consumption of prepackaged or barbecued food and beverages within the scope of the Sailing Centre operation which already exists.”

At page 9:

“In reaching this conclusion I have considered the totality of the evidence and the whole of the operation... This is a Sailing Centre a minor part of which allows patrons and those waiting for patrons to enjoy a beverage and a light snack. Approval of the application simply allows a wider choice of beverage to be made.”

And finally at page 10:

“I have come to the conclusion that since the serving of alcohol as a part of the sale and consumption of prepackaged or barbecued food and beverages is a very minor part of the overall operation when looked at in its entirety... The application sought to confine the serving and consumption of food and drinks of all kinds to premises themselves and so long as that limit is observed I do not think that any significant effect would ensue.”

Conclusion

[68] Therefore, it is evident from the above statements that the Commissioner’s decision to “allow the applicant to serve alcohol as a function of the café operation in accordance with the terms of the application” was intended to confine the sale of alcohol only to patrons and their guests. It does not permit the sale of liquor to passers-by. Condition three of the Consent that the holder “shall not be permitted to erect any sign that is visible from a public place” only serves to reinforce that view.

[69] Accordingly, we are satisfied as to the matters to which we must have regard as set out in s.13(1) of the Act. We have said that we now consistently maintain a conservative attitude when fixing the hours of trading. We point out that the purpose of the legislation is that any initial grant of a licence will be restricted to 12 months to give the enforcement agencies the opportunity to comment when the licence is due to be renewed.

[70] In formulating the terms and conditions of the licence, we have taken care to ensure that Mr Landl is given little opportunity to breach such conditions or indeed the conditions imposed by the resource management consent.

[71] In light of the evidence given by Mr Landl that he wished to open the premises to the public and have functions, we agree with Mr Foley’s concerns that he may be unwilling to comply with the conditions attached to the licence.

[72] Pursuant to s. 14(5)(a), the Authority has the power to fix the days and hours during which liquor may be sold. We have adopted a conservative approach to hours of trading for any new licence. Because of our reservations about the application and the applicant we have decided to restrict trading to the morning tea/lunch hour/ afternoon tea period. No figures were available to show when prepackaged food was sold.

[73] If Mr Landl is unable to sell liquor in the evenings then there will be less chance that the resource consent will be breached. There will be less opportunity for functions. Mr Landl will have twelve months to prove that the facility will be a minor adjunct to the main activity. He is entitled to apply for extended hours on any renewal. Evidence can then be given as to whether the concerns have been realised. On the other hand, if there is evidence that he has ignored the conditions of the licence, then the hours or the existence of the licence can be revisited.

[74] Because this is an unusual licence, it demands an unusual system of control to ensure that the style of licence is not abused.

[75] We grant the applicant an on-licence for the sale and supply of liquor for consumption on the premises. Pursuant to s. 14(5)(h) of the Act liquor may only be served to any patron of the Sailing Centre or any guest of that patron on any day when the Sailing Centre is open to the public between the hours of 11.00 am and 4.00 pm. A copy of the licence setting out the conditions to which the licence is subject is attached to this decision. In view of the fact that the sale and supply of liquor was not to be the principal activity no designation will be imposed.

[76] 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] Such time as the Authority has received confirmation from the District Licensing Agency that all relevant clearances have been obtained.

[77] The applicant’s attention is drawn to ss.25 and 115(2) of the Act obliging the holder of an on-licence to display:

• [a] A sign attached to the exterior of the premises so it is 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 to be easily read by persons entering through the principal entrance.
  
• [c] The name of the manager on duty shall be prominently displayed inside the premises so as to be easily read by persons using the premises.
  

DATED at WELLINGTON this 5th day of April 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Two Mile Bay Sailing Centre.doc(afw)