Robertson v Mana Taverns Limited [2005] NZLLA 169 (4 April 2005)

Last Updated: 24 February 2010

Decision No. PH 169-170/2005

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for the variation of on-licence number 046/ON/1106/01 issued to MANA TAVERNS LIMITED in respect of the premises situated at 103 Mana Esplanade, Porirua City known as “Sandbar Pub”

BETWEEN DIANE MARGARET ROBERTSON

(Porirua District Licensing Agency Inspector)

Applicant

AND MANA TAVERNS LIMITED

Respondent

AND

IN THE MATTER of an application by MANA TAVERNS LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 103 Mana Esplanade, Porirua City known as “Sandbar Pub”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 27 January 2005

APPEARANCES

Mrs D M Robertson - Porirua District Licensing Agency Inspector - applicant and in opposition to the renewal application

Mr J B Seddon - agent for respondent and applicant for renewal
Senior Sergeant S D Sargent - NZ Police - to assist

Ms C R Jurgeleit - for John Kevin Crimp - objector to the renewal application

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Mana Taverns Limited (hereafter called “the Company”) was established in October 1999, and was first issued an on-licence for the “Sandbar Pub” on 17 September 2001. The premises are situated at 103 Mana Esplanade at Mana. Mana is situated between Porirua and Plimmerton, and the Esplanade is effectively State Highway One. The premises are set back from the road by a substantial car park. The car park serves the parking needs for a small business centre, which includes two licensed premises being “The Cove” and the “Sandbar Pub”. There is also a bottle shop, medical centre, land agent and other retail outlets.

[2] The “Sandbar Pub” is a tavern. It services both the local community and the travelling public. It has gaming facilities, television screens, and both recorded and live musical entertainment is provided. Live jazz music has been performed every second Sunday for several years. Other bands play on Friday nights.

[3] The trading hours are (apart from the three and a half sacrosanct days):

Monday to Saturday 7.00 am to 3.00 am the following day

Sunday 7.00 am to 12.00 midnight

[4] The renewal application attracted one objection from Mr J K Crimp who resides at 11 Acheron Street. His house is on a hill opposite, and in a direct line with the “Sandbar Pub”, and is 66 metres from Mana Esplanade. The premises has bifold type windows that face towards the frontage of Mr Crimp’s house. His objection related to excessive noise, intoxication, and unacceptable behaviour on the part of patrons outside the premises in the adjoining carpark.

[5] There was no opposition to the application for renewal from the Police or the Medical Officer of Health. The licence was due for renewal on 17 September 2004.

[6] No changes are sought to the conditions of the licence.

[7] On 3 December 2004, the Inspector filed an application pursuant to s.132 of the Act for variation of the authorised trading hours. The ground of the application is pursuant to s.132(3)(a):

That the licensed premises have been conducted in breach of any of the provisions of the Act or any conditions of the licence or otherwise in an improper manner.

[8] In support of the ground that the premises have been conducted otherwise in an improper manner, the Inspector alleged that between 9 November 2001 and 22 October 2004, there had been a total of 19 complaints to the noise control officer. They were from five different complainants residing in the vicinity of the “Sandbar Pub” who had been affected by noise from music and bands. A summary of the outcome of those 19 complaints was:

• Asked to turn down music (3).
  
• Noise not considered excessive at time of visit (6).
  
• Band finished and packing up or bar closing (4).
  
• No noise found (2).
  
• Noise found to be excessive (4).
  

Inspector’s Evidence

[9] Diane Margaret Robertson is the Porirua District Licensing Agency Inspector. She said that the objector, Mr J K Crimp, had previously appeared before the Authority in respect of an application by the neighbouring premises “The Cove”. On that occasion he had expressed his frustration about the ongoing noise emanating in particular from the “Sandbar Pub”. Mrs Robertson referred to the noise complaints received by the Council.

[10] On 19 November 2004, the Inspector compiled a very lengthy and thorough report concerning the ongoing problems in relation to noise complaints over a period of three years in which she outlined each of the 19 complaints and the action taken in respect of them. Although there were five complainants, the majority of the complaints stemmed from Mr Crimp. The Inspector noted that the neighbouring premises, “The Cove”, which is in close proximity to the “Sandbar Pub” had been the subject of a far lesser number of noise complaints.

[11] Mrs Robertson referred to a warning letter sent to the Chief Executive of Mana Taverns Limited on 18 April 2002, in which Mrs Robertson said that the Council records disclosed five complaints between December 2001 to April 2002, from different people residing in the vicinity of the “Sandbar Pub”. She summarised each of the incidents and then advised the Chief Executive of the Company of every occupier’s legal obligation under s.16 of the Resource Management Act 1991 to ensure noise emission does not exceed a reasonable level.

[12] On 20 October 2002, Mr Crimp complained that he had been driven out of his home twice in one weekend by noise from the “Sandbar Pub”. On 15 November 2002 Mr Crimp was invited to a meeting at the Council offices with the object of finding a resolution to the problem as the Council was not certain at that time that all the complaints were justified.

[13] Following the meeting, Mr Crimp was advised to continue making his complaints, but he was to ensure that that they were channelled through the Council’s noise contractor so that the Council could continue to monitor the premises. On 10 January 2003, at about 10.25 pm, the Council’s Senior Health Inspector, Mr T Walker, carried out a noise assessment on the “Sandbar Pub”. Road traffic noise interfered with the assessment, and Mr Walker and Mr Crimp both agreed that the noise was not excessive. Nevertheless, Mr Walker instructed the duty manager, Preston Hughes, to keep the windows shut at all times while the band was playing.

[14] On 15 January 2003, Mrs Robertson wrote again to Mana Taverns Limited concerning the visit of Mr Walker on 10 January 2003, and his advice to Mr Hughes. Mrs Robertson reiterated Mr Walker’s advice to Mr Hughes that it was necessary for the windows to be kept shut at all times when a band was playing. The Company was advised that the Council would continue to monitor the premises.

[15] On 15 April 2003 Mrs Robertson wrote to Mana Taverns Limited in which she thanked the Company for attending a meeting on 11 April 2003, and she outlined the main points covered at the meeting. Those points included an undertaking that the management of the “Sandbar Pub” would ensure that the noise limits in the District Plan would be complied with. The Company acknowledged that they had to operate within the noise limits set out in the District Plan. The Company was advised that the complainant would be satisfied if the windows and doors were kept shut to minimise the escape of excessive noise. In her letter Mrs Robertson said that investigations by Mr Walker showed that music from some groups, particularly loud rock bands, would still be slightly above the legal noise limits even with the doors and windows closed.

[16] Further correspondence and discussions took place between the Council, Mr Crimp, and representatives of the “Sandbar Pub” over the ensuing months. Matters reached a head on Tuesday 27 May 2003, when Mr Crimp was served with an abatement notice at 2.25 pm. He was sitting on his front lawn with two stereo speakers facing toward the “Sandbar Pub”, apparently in retaliation for being kept awake at night by noise from the premises.

[17] On 19 December 2003, Mrs Robertson sent an email to Recon Professional Services, the new noise control contractor for the Council. She instructed them to stop giving verbal warnings to the “Sandbar Pub” and “The Cove”, which were in suburban zones under the Porirua City District Plan, and to issue excessive noise directions if noise from those premises could be heard over the traffic on State Highway One.

[18] On 1 and 24 January 2004, noise abatement notices were issued to “Sandbar Pub”. On 26 February 2004, the Council held another meeting with the management of Mana Taverns Limited to discuss the noise abatement notices. At this meeting, Mrs Robertson also referred to previous correspondence on 15 April 2003 and 17 September 2003, which was discussed. That correspondence addressed matters regarding excessive noise. The Company was informed that as its licence was due for renewal on 17 September 2004, such matters could be problematic for the Company. She advised the Company that a possible consequence would be that the Agency would seek a variation of the authorised trading hours. The Company agreed that it would write to the Council by the end of April 2004, advising what steps it had taken to reduce excessive noise, and that it would engage an independent noise consultant to assess the problem.

[19] In April 2004, the Council received a “Noise Monitoring Report” for the “Sandbar Pub” commissioned by the Company, and prepared by Malcolm Hunt and Associates. That report contained a recommendation that all doors and windows be kept closed whenever amplified music was being played, that gaps around the outside doors be sealed, and all doors be fitted with self-closing devices.

[20] Between 27 February 2004 and 22 October 2004, another four complaints of noise were received from Mr Crimp. In two cases there was no noise when the noise control officer arrived, one was adjudged not excessive, and the band was told to turn down the bass in the other. The Inspector referred to correspondence between 18 April 2002 and 21 April 2004, with the management of “Sandbar Pub” regarding the complaints of noise, their responsibilities regarding noise, and the Company’s undertaking to mitigate excessive noise.

[21] The Inspector referred to her report of 19 November 2004. In that report she referred to the noise reading assessments for the “Sandbar Pub” carried out by Mr Walker on behalf of the Council, and Malcolm Hunt and Associates who were commissioned by Mana Taverns Limited. Mrs Robertson also quoted the relevant noise standards under the District Plan for the Suburban Zone in which the “Sandbar Pub” is located. She said that in April 2003, Mr Walker had taken noise readings from Mr Crimp’s property when the windows and front door of the “Sandbar Pub” were closed. The recorded noise was barely audible above the traffic noise.

[22] The report from Malcolm Hunt and Associates (Hunt report) stated that: “It is therefore the effects of the late night activity, when ambient sound levels may decrease that have the greatest potential from noise from the Sandbar to effect nearby residential sites.” The Hunt report went on to recommend mitigation measures to resolve the issues. The Inspector’s report states that noise call-outs had been late at night and early morning, when the Hunt report says that the noise is most likely to have an effect on residential sites.

[23] The Council also obtained an independent assessment from Bel Acoustic Consulting dated 25 January 2005, on the level of noise escaping from the “Sandbar Pub”. The consultant’s conclusion was that the level of noise would be unlikely to exceed the District Plan limits as long as the windows at the front and side of the building remain closed when the band is playing. The entrance door should also remain closed except when patrons are entering or leaving the premises. That would minimise the amount of noise emitted, and could be managed by either the security personnel on duty at the front of the premises, or the duty manager.

[24] The Inspector also observed that over the previous three years there had been a continual change of managers and more recently a change in the executive officers of Mana Taverns Limited. The Inspector was of the view that with the continual change of managers, a misconception had arisen whereby it was thought that Mr Crimp was the only complainant, and therefore the full impact of the noise situation had not been addressed as seriously as it should have been.

[25] The Inspector noted that the “Sandbar Pub” which operates in a suburban shopping centre has the same hours as licensed premises in the city centre Monday to Saturday and on Sunday it had longer hours than premises in the city centre. She noted that the maximum hours under the Porirua Sale of Liquor Policy for new premises is:

Monday to Saturday 7.00 am to 1.00 am

Sunday (Dining only) 9.00 am to 10.00 pm.

This policy had not been changed since the amendment to the Sale of Liquor Act in 1999. The Inspector advised that the policy is currently being reviewed, but it was likely that the hours of premises in suburban shopping zones near residential houses would continue to be more restricted than premises in the city centre. The draft policy dated June 2002 states:

“Council considers that it is appropriate to have more restrictive operating hours in residential areas than in the city centre, commercial or industrial areas because of the need to protect the amenity of residential areas.”

[26] The Inspector’s view was that the hours of trading may well contribute to the alleged problems, and she recommended that the authorised hours be reduced to:

Monday to Saturday 7.00 am to 1.00 am the following day; and

Sunday 7.00 am to 10.00 pm

[27] The Inspector noted that at the time she made her application both “The Cove” and the “Sandbar Pub” which occupy neighbouring sites, operated under conditions that were outside the guidelines of the Porirua City Council Sale of Liquor Policy. Both premises shared the same 3.00 am closing time as premises in the city centre. The Authority recently said in The Cove Group Limited LLA PH 072-073/2005:

“Although we have found that there are insufficient grounds for reducing the trading hours or suspending the on-licence, we observe that we have recently heard an application for renewal of the on-licence for the “Sandbar Pub”. That decision will be issued in due course. In our earlier decision The Cove Group Limited (supra), we increased the trading hours for “The Cove” to bring them into line with the “Sandbar Pub”.

[28] We also made these comments at paragraph [23]:

“We point out however, that if the evidence received at the hearing is any guide, the renewal of “The Sandbar” (sic), licence may be the subject of a challenge. If in the future, its hours of trading are reduced for any reason, then the applicant can expect the same rules of “fairness and consistency” will be applied in respect of its premises.”

[29] And at paragraph [38]:

“In the event that the “Sandbar Pub’s” trading hours are reduced, and in order to avoid the consequences of migratory drinking, we anticipate that the company may be asked to voluntarily reduce its trading hours. We shall watch with interest the reactions of the company.”

[30] The Inspector referred to the closing times of the other tavern-style premises in Porirua suburban centres that included:

Urbanz Bar & Café Monday to Saturday 9.00 am to 2.00 am the following day

Sunday 9.00 am to 10 pm

The Club Bar & Café Monday to Saturday 7.00 am to 2.00 am the following day

(New Owner) Sunday 9.00 am to 10.00 pm

Graffiti Sports Bar Monday to Saturday 10.00 am to 12.00 midnight

& Cafe Sunday 12 noon to 9.00 pm

The Inspector commented that none of those premises have been the subject of noise complaints.

The Company’s Evidence

[31] John Bryan Seddon is chairman and currently Acting Chief Executive Officer of Mana Taverns Limited, which is the owner the “Sandbar Pub”. Mana Taverns Limited is a private company owned by the Porirua Licensing Trust and Trust Porirua which have shareholdings of 65% and 35% respectively. Consequently, it is charged with producing income to be distributed to the community. The Company was established in October 1999, and owns and operates three restaurants in Wellington, Lower Hutt and Napier under the “Hog’s Breath Café” franchise, and two taverns in Porirua, “Kelly’s Place” and the “Sandbar Pub”.

[32] He stated that the “Sandbar Pub” has become the home of the well-known Kevin Clark and his jazz band, which has played at the premises every second Sunday night for several years. Mr Seddon said that a full attendance in December at the launch of the band’s CD, demonstrated that the band had community and wider public support.

[33] Mr Seddon said that although the current hours are not used every day, they provide flexibility for special functions that can be catered for at short notice. He said that there was no suggestion in any of the comments by Mr Crimp or the Inspector that the hours had resulted in any major detriment. He submitted that the lack of Police opposition to the application spoke volumes.

[34] Mr Seddon said that the Company did not understand the relationship between the reduced hours of operation and the sole ground of objection, the alleged noise nuisance. The reduction of hours on every day was inappropriate when the complaints occurred mainly on Friday nights. He argued that reducing the hours would not achieve the objective of reducing noise which should be addressed before imposing a blanket variation of trading hours. It was his view that the Council’s strategy was directed to discouraging licensed premises in suburban areas and directing them towards the central business district. He considered that the Council was more concerned with restricting commercial development than facilitating it.

[35] Mr Seddon pointed out that the Council’s own records showed that of the 19 complaints in three years only four had been considered excessive. Conversely, there was no excessive noise on the other 15 occasions. He said that noise had escaped from the premises when patrons opened the windows after staff had closed them because of the high room temperatures. The fact that two of the four excessive noise events occurred in January supported that view. He noted that the Council had never had a complaint about noise on the Sunday nights when the jazz band played. Hence, it was the style of music played on Friday nights that generated the complaints.

[36] Mr Seddon submitted that sound rises, and therefore Mr Crimp was also likely to hear noise from the road and the shopping centre where the “Sandbar Pub” is located. He argued that the Company was sympathetic to Mr Crimp and the other complainants, and it would do everything it could to mitigate any nuisance that the premises caused.

[37] Mr Seddon was critical of the Council’s Sale of Liquor Policy, and noted that the proposed hours of variation were aimed at new businesses. He pointed out that the “Sandbar Pub” is a continuation of licensed premises on the current site for more than 30 years. He asked the Authority to note that the Mana area was very different from other suburban areas in Porirua. Instead of being surrounded by residential homes and local roads, Mana was bounded on one side by a major state highway, and on the other by the main trunk rail network, a large open reserve space, and the sea. Therefore he argued that Mana should be treated like a central business district rather than a truly suburban area, and should be granted trading hours for that situation. We disagree. The premises has private residences in close proximity to which it must have regard, and the District Plan, to which we must also have regard, declares that the area is a Suburban Zone.

[38] Mr Seddon said that the Company firmly rejected any suggestion that it was responsible for the intoxicated persons in the shopping centre and the associated nuisance caused by them. He submitted that Mr Crimp wrongly assumed that those people came from the “Sandbar Pub”. They could well have come from the nearby take-away pizza business or elsewhere. He pointed out that the area immediately outside the “Sandbar Pub” was a public car park over which the Company had no control.

[39] Mr Seddon asked the Authority to take into account that the Company has been operating other licensed premises in Wellington, Lower Hutt, and Napier without causing concern to the enforcement agencies.

Objector’s Evidence

[40] John Kevin Crimp has owned his house at 11 Acheron Road, Mana opposite the “Sandbar Pub” since 1995. However, he and his wife and two young children aged 5 and 7 years have only lived there since August 2001. They have been regularly disturbed by noise from live bands playing at the “Sandbar Pub” most Friday nights. He said that he had complained to the Porirua City Council on innumerable occasions.

[41] Mr Crimp said his other concern was the noise and mess made by drunken patrons after leaving the pub. He produced photographs that he had taken showing the location of his house in relation to the “Sandbar Pub”, bottles he had collected outside the premises, and a person urinating in the entrance to the medical centre. He was unable to prove that the bottles and the person urinating were connected in any way with the premises. He alleged that he had seen drunken persons coming from the Company’s premises, and others that may have come from “The Cove”. Mr Crimp did not provide any proof that those persons were intoxicated. It is unlikely that we would contemplate interfering with a licence and/or its conditions without some proof that the persons were actually intoxicated.

[42] He produced 16 documents dated between 6 December 2001 to 19 October 2004. They included samples of correspondence between Mr Crimp and the Council regarding noise emissions from the “Sandbar Pub”, notes of observations he had made regarding noise from the premises, offensive behaviour in the street, and correspondence with the Police regarding the photographs he had taken of alleged intoxicated persons.

[43] Mr Crimp also produced a chronology of complaints he had made regarding noise to the noise control officer, the “Sandbar Pub”, the Council, or the Police. There were 64 occasions between Friday 9 November 2001 to 22 October 2004, when he made complaints either orally, or by email, or letter. There were also a five further occasions between 29 October 2004 and 17 December 2004 when there was particularly loud music, but he did not call the noise control officer. Mr Crimp said the chronology helped to demonstrate the relentlessness of the disturbance that the “Sandbar Pub” created.

[44] He said that the sound travels up to his house, and prevents him and his family from sleeping. On at least six occasions he had to leave the house and sleep on his boat at the Mana marina because he only had a single couch in his house. He said that the sound was more tolerable if the windows of the premises were kept closed. Two years ago when his complaints about the “Sandbar Pub” produced no solution, he soundproofed his bedroom and double-glazed the windows. He said it was difficult and expensive to soundproof a house that was not designed with that object in mind. The soundproofing had proved inadequate against the low frequency noise and music from the premises. He produced a document entitled “Gib Noise Control Solutions” that explained that Gib soundproofing does not deal adequately with “low frequency dominated noises such as [from] pubs and nightclubs etc.”

[45] Mr Crimp derided the attendance of the noise control officers of the Council’s previous contractor. He said that their response to complaints was either poor or non-existent. Although he was told that they had assessed the noise levels at his boundary he never saw them there. Because the officers never went to Mr Crimp’s house, they did not appreciate the seriousness of the problem. He said that from the bottom of his drive to his house the noise became the louder the closer one got to the house.

[46] Following the appointment of the Council’s new noise control contractor, noise abatement notices had been issued, and the situation had improved. However, those fixes had only been temporary and the problem had persisted. The current pattern had lasted over three years, and despite the large number of complaints and undertakings by the Company’s management, Mr Crimp did not expect the situation to change.

[47] Mr Crimp asked that the Company’s authorised hours be cut back to 7.00 am to 11.00 pm on Friday and Saturday nights to allow the closing time noise to dissipate by 11.30 pm or midnight. He contended that a 1.00 am closure on Friday and Saturday nights would not change the situation. His concern was that if the Authority restricted the hours on Friday nights only, the problem would shift to Saturday night. He asked for the licence to be renewed for one year so that the noise issue could be revisited again quickly.

Objector’s Submissions

[48] Ms Jurgeleit submitted that the noise from the “Sandbar Pub” was intolerable and far beyond what Mr Crimp should have to put up with. Ms Jurgeleit compared the facts between those in the Authority’s decision in The Cove Group Limited LLA PH 28/2004 and the present case. She said in that decision the Authority found that the pattern of noise nuisance was not sufficiently established to bring the suitability of the licensee into question.

[49] However, Ms Jurgeleit submitted that the record was quite different in the present case. In particular, there had been 28 documented and specific complaints to noise control, the Council, and the Police over a period of three years. Those complaints were primarily from Mr Crimp but there had been other complainants as well. There had also been two noise abatement notices issued. On 10 January 2003, the Company was told to keep its windows and doors shut while live bands were playing. Ms Jurgeleit referred to six documented occasions when bands had been playing with the doors and windows open.

[50] Ms Jurgeleit noted that two noise experts had measured noise from the “Sandbar Pub” when live bands were playing and the noise had exceeded the acceptable limits in the District Plan. She referred to Mr Hunt’s report that was commissioned by the Company. His measurements were taken when the windows and doors of the premises were shut, and on an evening when there was no complaint about excessive noise. All his measurements were taken from points below Mr Crimp’s house. His assessment was that with the windows and doors closed and excluding all non-bar noise, the activity could comply with the District Plan. Ms Jurgeleit noted that the District Plan criterion applicable at Mr Crimp’s house was 5 dBA less than the criterion for the area within 50 metres of an arterial road. Mr Walker on the other hand had taken measurements at Mr Crimp’s house when the doors and windows of the premises were closed. Nevertheless, Mr Walker had measured the band noise level as being in excess of the District Plan levels.

[51] Ms Jurgeleit noted that in Sheepy’s Limited LLA PH 237/2001 the Authority had reduced the closing time from 3.00 am to 1.00 am on an application for renewal of a tavern-style licence because of a history of noise problems. That decision was confirmed on appeal. Ms Jurgeleit submitted that because a 1.00 am closing time would not change Mr Crimp’s situation he was seeking to have the hours reduced to 11.00 pm which was outside the Authority’s general approach to hours in K R & C A Burton, LLA 2020-2025/95 where it was stated:

“Without intending to fetter ourselves it may assist if we re-iterate our general approach to closing hours under hotel and tavern on-licences. Where there are residential neighbours closure at around 11.00 pm on weeknights, and 12.00 midnight or 1.00am the following day on Friday and Saturday nights will frequently be appropriate. In other cases for taverns and hotels 3.00 am is common."

[52] Ms Jurgeleit submitted that Mr Crimp had “done his bit” by soundproofing his home, and yet the Company had for three years failed to comply with the directions of the Council to contain the noise on its premises. Ms Jurgeleit suggested that an alternative to reducing the Company’s authorised hours could be to impose a “probationary” one-year renewal period to give it an opportunity to implement noise reduction measures.

The Company’s Submissions

[53] Mr Seddon emphasised that the Company took its responsibilities seriously. He submitted that the Company had an existing use, and there ought to be compelling reasons to change its authorised hours. He agreed that changing the closing hour to 1.00 am would not necessarily resolve the problem.

[54] Mr Seddon said that Company was trying to cater to a broad range of people, and they would not wish to adopt the option of ceasing to have bands on the premises. He said that the issue of hours came back to the need for flexibility. The Company was prepared to reduce the emission of noise from the premises such as putting up acoustic curtains.

[55] Following the hearing, Mr Seddon wrote to the Authority on 31 January 2005 answering two questions raised at the hearing. First, he confirmed that there was an air circulation system in the kitchen and bar area which exhausts internal air to the atmosphere. A large ceiling fan and air conditioner in the gaming room, which is open to the bar area, supplemented that. Second, rubber strips affixed to the window frames hermetically sealed the windows of the premises when closed.

Authority’s Conclusion and Reasons

[56] Section 132(1) of the Act provides:

---(1) Any member of the Police or any inspector may at any time apply to the Licensing Authority in accordance with this section for an order—

(a) Varying or revoking any condition of a licence, other than a special licence, imposed by the Licensing Authority, or imposing any new condition (relating to any matters specified in section 14(5) or section 37(4) or section 60(2) of this Act);

[57] Section 14(5)(a) of the Act provides that:

(5) On granting an application for an on-licence, the Licensing Authority or District Licensing Agency, as the case may be, may impose conditions relating to the following matters:

(a) The days on which and the hours during which liquor may be sold:

[58] The evidence from the objector and the Inspector was that complaints about noise have been consistent and sustained over a period of three years. We are satisfied that the Company’s premises have been the source of a long-standing noise nuisance problem. The source of frustration for both the objector and the Inspector is that despite repeated complaints and attempts, the issue remains unresolved.

[59] The Authority’s attitude to the problem of noise nuisance was encapsulated in Paihia Saltwater (2001) Limited LLA PH 391/2001. In that decision we made the following comments:

“The Authority intends to ‘draw a line in the sand’ on the issue of noise.

It seems to us that there have been a number of changes in drinking and entertainment habits. Music tastes have altered. More and more people seem to congregate outside if weather permits. Young people tend to want to ‘party’ at much later hours. The music (particularly the bass) is louder and more intrusive.

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.

We have already heard from licence holders who have either installed air conditioning so they can keep doors and windows closed, or have employed security people to monitor outside noise, or they have installed automatic sound control systems. We will always give full credit to those holders who acknowledge any existing noise problem and try and do something about it. In our view the term ‘host responsibility’ does not exclude the people who live nearby.

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. ..."

[60] Mr Seddon argued that there had only been four occasions of excessive noise in three years. However, what transpired during the hearing was that for about two years the Council’s previous noise contractors had not been carrying out their functions properly, and had failed to assess the true extent of the noise emanating from the Company’s premises. It was not until those contractors were replaced, and the Inspector gave fresh instructions, that Mr Crimp began to get a proper response from the noise control officers. It is difficult to assess what effect that would have had on this hearing, but in light of the evidence, it is likely that Mr Crimp’s objection would have been strengthened.

[61] It also transpired that Mr Crimp’s complaints received another set back by the number of changes to the management of the “Sandbar Pub”. As a consequence of the lack of continuity of managers familiar with the situation, Mr Crimp’s complaints did not receive the due attention that they deserved. The correspondence regarding Mr Crimp’s complaints provides an understanding of the frustration that must have driven him to retaliate by directing his own stereo sound at the “Sandbar Pub” on 27 May 2003.

[62] The Inspector’s evidence, her report of 19 November 2004, and the accompanying documentation paints a sorry picture. Through correspondence and meetings, there had been unsuccessful attempts over a period of two years between 2002 and 2004 to get the management of the “Sandbar Pub” to react to the steady stream of noise complaints and carry out noise attenuation measures. Despite those attempts a further two noise abatement notices were issued in January 2005. We accept that Mr Seddon is in a difficult position. He has had to defend the Company’s actions when many of the events occurred when he was not the Chief Executive of the Company. He argued strongly that the Company is a responsible licensee with a particular responsibility to the community. The Company therefore needs the maximum allowable hours to permit it to serve its community and patrons. He said the only issues that have arisen were from a small number of alleged noise infringements. As noted above, that number could have been much greater if Mr Crimp had not been the victim of circumstances beyond his control.

[63] We do not accept that the Company has been a responsible licensee. As indicated above, a licensee has a responsibility toward its neighbours. No one should have to suffer the continual excessive noise that Mr Crimp and his neighbours have had to suffer. In Stephen Ofield and Linda Fay Ofield LLA 2466 – 2467/96 the Authority said:

“The Authority is conscious of the fact that unlike the Sale of Liquor Act 1962, the current legislation does not empower us to impose conditions on a licence restricting noise emission from licensed premises. However, we are also conscious that it was a fundamental precept of the report of the 1986 Working Party on Liquor (the Laking Committee) that resulted in the present legislation that licensees have to live with their neighbours. In our view if we do not react to genuine concerns of residents who are neighbours of licensed premises, then the whole procedure of the Act providing for objections and public hearings would be a meaningless exercise.” [emphasis added]

[64] There is sufficient documented history of noise complaints and follow-up action from November 2001 to 22 October 2004, for us to be more than satisfied on the balance of probabilities that the ground of the application has been established. It is desirable to make an order pursuant to subs.(6) of s.132 for the following reasons. First, that what we said in Ocean Focus Limited LLA PH 579/2004 has some relevance to the present case:

“The company needs to be aware that a licence is a privilege and not a right. It is not a guarantee of profitability, and its holder acquires certain responsibilities. It is apparent that the applicant has become blinded by its perception of the type of business that it wants to operate ...”

[65] Secondly, the Inspector has recommended that the hours be reduced Monday to Saturday 7.00 am to 1.00 am and Sunday 7.00 am to 10.00 pm in line with the Council’s current Sale of Liquor Policy. She believed that reduction “was justified based on the history or ongoing noise problems that have been excessive and intrusive during what has been effectively their first three year licensing period.” In her application the Inspector cited K R and C A Burton LLA 2020 – 2025/95 where the Authority said:

"Without intending to fetter ourselves it may assist if we reiterate our general approach to closing hours under hotel and tavern on-licences. Where there are residential neighbours closure at around 11 pm on weeknights, and 12 midnight or 1 am the following day on Friday and Saturday nights will frequently be appropriate. In other cases for taverns and hotels, closure at 3 am is common. We will continue to regard 24 hour-a-day licences as the exception rather than the norm; 24 hour trading requires more detailed justification. In all cases the hours will be subject to the proposed use of the premises meeting planning requirements under the Resource Management Act 1991."

[66] Thirdly, we are satisfied that there are sufficient grounds for reducing the trading hours of the on-licence. Mr Seddon argued that making a blanket reduction of the hours from 3.00 am to 1.00 am would not reduce the noise nuisance. The purpose for reducing the hours is stated in Christchurch District Licensing Agency Inspector v Karara Holdings Limited [2003] NZCA 96; [2003] NZAR 752 at paragraph [29] where the Court of Appeal said:

“...the function of s.132 is to enable the Licensing Authority to enforce sound management of licensed premises. Its particular role is to enable the Licensing Authority to secure management compliance by licensees, through enforcement steps, in those cases brought before it by the Police or District Licensing Agencies where it appears there have been breaches in licensing standards which are reflected in the grounds for applying for and making orders under s.132.”

[67] We are conscious of Mr Crimp’s request that the trading hours be reduced to 11.00 or 11.30 pm, and Mr Seddon’s submission that a change to 1.00 am will not stop the noise nuisance. Our response is that if the noise is not reduced the Inspector may make another application pursuant to s.132 of the Act and the hours may be further reviewed. Mr Seddon has said that the Company will do all it can to remedy the situation. This is the Company’s opportunity to demonstrate that it can live in harmony with its neighbours.

[68] In considering any application for the renewal of an on-licence, the Licensing Authority shall have regard to the following matters in s.22 of the Act:

(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.

[69] The Authority is also governed by s.23 of the Act, which provides:

(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.

It will be noted that pursuant to s.23(1)(b) of the Act, the Authority has concurrent jurisdiction to amend trading hours.

[70] The inability to control noise from licensed premises raises the question of suitability of the licensee. However, after considering the matters in s.22 of the Act, Mr Seddon’s evidence, his submissions, and the Company’s promise to mitigate any nuisance, as well as our intention to reduce the authorised trading hours we are inclined to grant a renewal of the on-licence for three years. As we have already pointed out, if there are further complaints the Inspector can make another application pursuant to s.132 of the Act. We think it is appropriate to allow the reduced hours of trading to become established and accepted, in the community. It will be particularly important to find out if there are behavioural changes and/or a reduction in noise levels, as a result of the reduced level of activity.

[71] We therefore make the following orders:

• [a] The application to vary on licence 046/ON/1106/01 issued to Mana Taverns Limited is granted. The authorised hours will be:
  

Monday to Saturday 7.00 am to 1.00 am the following day

Sunday 7.00 am to 12.00 pm midnight

[b] The application for renewal of the above on-licence is granted for three years.

[72] The change in hours will take effect from six weeks from the date of this decision. The purpose, as indicated in paragraph [28] above, is to provide an opportunity for the Inspector to negotiate a voluntary reduction in hours with The Cove Group Limited. If the Inspector is unsuccessful then we invite her to make another application for variation under s.132 of the Act.

DATED at WELLINGTON this 4th day of April 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

Sandbar Pub.doc(aw)