Parode Charter and Diving Limited, re [2005] NZLLA 490 (4 July 2005)

Last Updated: 18 July 2010

Decision No. PH 490/2005

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by PARORE CHARTER & DIVING LIMITED for an on-licence pursuant to s.9 of the Act in respect of a vessel based at the Anchorage, Abel Tasman National Park, known as “Cat-a-Rac”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at RICHMOND on 22 June 2005

APPEARANCES

Mr N B Horn – agent for applicant
Mr D R Lewis – Tasman District Licensing Agency Inspector – to assist
Sergeant M P Fitzsimons - NZ Police – to assist

Objectors in person

Mrs J M Sherlaw
Mr R B Kay

Mr D J Win

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is the applicant company’s second application for an on-licence. The company initially applied for an on-licence in April 2004. On that occasion, the licence was sought to allow the consumption of liquor on a vessel known as “Cat-a-Rac”. The evidence was that the vessel was generally anchored at Anchorage Bay, in the coastal waters adjacent to the Abel Tasman National Park. The intention was to use the vessel as a floating guesthouse or houseboat, and to sell liquor only to persons booked and accommodated on the vessel excluding their guests. It was anticipated that the vessel would also be used on a limited basis, for charter cruises.

[2] The hearing took place on 27 September 2004. The evidence at that time was that the vessel did not qualify as a conveyance, because it was not being used for the transportation of persons. Accordingly, the application was based on the presumption that the vessel was the equivalent of premises, for which an on-licence could be granted.

[3] In our decision Parore Charter & Diving Limited LLA PH 746/2004, we determined that the argument had become the subject of “logical fallacy”, in that it had been assumed that because the vessel was not a conveyance, it must be classified as a premises. Based on the evidence, our view was that the “Cat-a-Rac” was neither a premises, nor a conveyance. It was not a premises because it was not a permanent structure. It was not a conveyance, because its main business was to provide accommodation, and not the transportation of people. We therefore took the view that we did not have the jurisdiction to grant the application, and it was accordingly refused.

The Application

[4] On 23 February 2005, the company filed the present application for a ‘conveyance’ style on-licence. The general nature of the business was described as “Charter vessel offering accommodation”. In a document accompanying the application, the company wrote:

“The vessel is available for charter and overnight accommodation. Day charters we cater for up to 45 persons, overnight charters we cater for 22 persons. Recent charters include:-21st Nsm., Nelspec Kaiteriteri, Feb 3 and 4 Bark Bay. Enquiries for charters:- 2 Christmas work functions.

Cat-a-Rac” is one of two vessels owned and operated by Parore Charter & Diving Ltd., our second vessel Parore is used more for specialised charters involving longer distances, dive courses, and dive charters. Cat-a-Rac is used for more localised charters involving larger groups, with day charters catering for up to 45 persons or overnight charters for up to 22 persons including those walking/kayaking the Abel Tasman Track.”

[5] The application stated that the principal route to be travelled was the coastal waters of the Tasman District Council. The trading hours sought were:

Monday to Sunday 9.00 am to 2.00 am while on charter outside Torrent/Anchorage Bay.

Monday to Sunday 10.00 am to 1.00 am the following day while at anchor. Licence is for sale to onboard guests only.

[6] As can be seen, the application has a dual purpose. The company wishes to sell liquor to persons using the vessel for charter purposes, and also to sell liquor to guests who have booked accommodation on the vessel. There are to be no sales to members of the public. As stated in the document accompanying the application, the company contends that persons using the vessel for accommodation purposes, are in effect chartering it. This aspect of the business is described as “overnight charters”. On the other hand, the Concise Oxford Dictionary tenth edition defines a charter as the hiring of a ship. An individual tramper seeking a bed for the night on the “Cat-a-Rac” is certainly not hiring it.

[7] Public notification of the application attracted eight letters in opposition to the licence, and fourteen letters in support. The submissions in opposition referred to the undesirability of the proposed business in the coastal waters of the Abel Tasman National Park, and the potential impact on the Park and its users, the hours of operation, as well as the likelihood of similar applications if a licence was granted. The Torrent Bay Township Committee subsequently withdrew its opposition, as individual members had expressed their views either for or against the proposal. The Police initially opposed the application, but their opposition was withdrawn at the hearing. There was no objection from the Medical Officer of Health.

[8] The Tasman District Licensing Agency Inspector wrote a very full report setting out the background to the application, and assessing the objections and submissions in support. Based on his interpretation of the Act, he recommended that an on-licence be issued, but only to allow the sale of liquor when the vessel was being used as a conveyance, and not for guests using the vessel for accommodation purposes.

The Hearing

[9] There has been little substantive change in the interim nine-month period. A brief history shows that in 2003, the company purchased a vessel known as the “Etosha”. That vessel had a “conveyance” style on-licence. In other words, liquor could only be sold during the period of any charter or scheduled sailing. The “Etosha” was extensively upgraded, and renamed the “Cat-a-Rac”. It has four private double cabins and dormitory accommodation for up to 22 persons. The company has two directors being Christopher John Waide and Gordon Brian Waide. The company has been successful in offering affordable accommodation in one of the most sought after destinations in the world.

[10] For over two years, the “Cat-a-Rac” has been at anchor in roughly the same position in Anchorage Bay. It is primarily used in the capacity of a vessel offering affordable accommodation to persons either walking or kayaking the Park. Every third day or so, the vessel is required to be taken out of the bay in order to clear toilet waste. In accordance with the Resource Management (Marine Pollution) Regulations, the vessel must be taken 500 metres from the shoreline before discharging its tanks. When the vessel returns to the bay, it puts down its anchors, although not necessarily in the same position as they were when it left. Consequently, the Tasman District Council has accepted that the vessel is not permanently moored, so no discretionary resource consent is required.

[11] During this period of time, there has been no untoward noise or disorderly behaviour as had been the case under different management. The applicant company has a safe ship management certification as enforced by the Maritime Safety Authority of New Zealand. In addition, it has received a certificate from the Tasman District Council, that the “Cat-a-Rac’s” operations are permitted in the coastal marine area in the Proposed Tasman Resource Management Plan.

[12] Mr C J Waide gave brief evidence. He accepted that the vessel’s principal business was the supply of overnight accommodation, but noted that since the last hearing, the vessel’s equipment had been upgraded enabling transportation charters to take place. In other words, the vessel was much more mobile. He produced a list of the charters undergone by the “Cat-a-Rac” between September 2004 and June 2005. In addition to the charters referred to in the application, the company had hosted a 30th birthday party, and provided a photography platform in May 2005, and a BBQ lunch at Adele Island in June 2005. On some occasions, there was no request to supply liquor. He saw the application as being an additional service to be offered to the company’s customers, particularly those relaxing on the vessel either before, during, or after an evening meal.

[13] Since the last hearing, the company had obtained a legal opinion to the effect that the “Cat-a-Rac” was a conveyance because it was used from time to time for the transportation of people. The opinion argued that the status of the vessel did not change just because it was moored for the night. In addition, the company employed the services of Mr N B Horn of Liquor Licensing Bureau (South Island) Limited. He asked that the area to be covered by the ship’s operations be extended to include Nelson Harbour. There was no opposition to this request.

The Police

[14] As stated above, the Police initially opposed the application. This was based on a visit made to the “Cat-a-Rac” on 10 February 2005. At that time the company was operating on a temporary authority based on the “conveyance” style licence issued to the former owners of the “Etosha” (see paragraph [9] above). The Police noted that the vessel was not under charter or taking part in any scheduled sailing, and accordingly, the company was operating in breach of the temporary authority. However, Sergeant M P Fitzsimons had received an undertaking from Mr C J Waide that there would be no more liquor sales while the “Cat-a-Rac” was moored, and since that time there had been no other adverse reports. Accordingly, Police opposition to the application was formally withdrawn.

The District Licensing Agency Inspector

[15] Mr D R Lewis provided further submissions to supplement his report. He noted that there was little difference in substance between the current application, and the previous one dealt with in September/October 2004. In his view the target market were those persons who were utilising the accommodation without being conveyed anywhere. He contended that there was confusion over the word “charter”, in that the company was arguing that guests who had booked accommodation were chartering the vessel. He believed that because the definition of a conveyance was a ship used for the transportation of persons, then the sale and supply of liquor could only be authorised when the vessel had that status, and was not being used for overnight accommodation by paying guests.

[16] Mr Lewis recommended the grant of an on-licence, but with the condition that the sale and supply of liquor only be permitted while the vessel was being used as a conveyance.

The Objectors

[17] As was the case in the previous hearing, none of the objectors had any concerns about the suitability of the applicant company. There were a number of comments to the effect that the company’s management of the business was a significant improvement in relation to the previous owner of the vessel. The Hon N R Smith, Member of Parliament for Nelson, was unable to be present but sent a facsimile. As before, his main concern was the precedent which would be set if floating accommodation vessels anchored in the sheltered bays of the Abel Tasman National Park, were able to be licensed.

[18] Mrs J M Sherlaw along with many of the objectors was confused as to whether the “Cat-a-Rac” was a conveyance or a premises. In her opinion the vessel was a fixture because it has been primarily anchored in the Anchorage since 2003. She acknowledged that her main concern was the full time presence of the vessel in the bay. However, she was also concerned about the precedent being established.

[19] Mr R B Kay acknowledged that there had been no problems since the company had taken over the operation of the vessel. He objected to the location of the vessel in one of the “pristine” areas of the park, and the potential for disruption. He questioned whether “guests” on board the “Cat-a-Rac” would include customers of the company’s charter boat the “Parore” who were brought to the “Cat-a-Rac” for evening meals.

[20] Mr D J Win noted that the application, as advertised, referred to the vessel plying the coastal waters of the Tasman District Council. He therefore questioned how the “Cat-a-Rac” could entertain guests in the Nelson Harbour. He also raised concern about whether the vessel was truly in the charter business, as it seemed to him that the vessel only left the bay to discharge waste.

Mr Horn’s Submissions

[21] Since the “Cat-a-Rac” was registered to carry 45 passengers, and since it could move under its own steam, Mr Horn contended that it was a conveyance. He pointed to the six functions or charters hosted by the vessel, between September 2004 and June 2005. He argued that the vessel was still a conveyance when anchored at the Anchorage, and providing accommodation for trampers and kayakers. We tend to agree with Mr Horn that the vessel may well be a conveyance, but the real issue in this case is whether the Act allows for the sale of liquor, absent a chartered or scheduled voyage.

[22] Mr Horn contended that the vessel could be chartered for accommodation. He argued that the “Cat-a-Rac” could not be an accommodation vessel part of the time, and a vessel under charter at other times. In our view, there may be limited occasions when the vessel could be chartered for accommodation purposes. But there is a major difference between 22 people from a club hiring the vessel for a function, and staying the night, and individual trampers and kayakers booking it to stay the night on their way through the Park. To suggest that casual trampers are chartering the vessel when they stay the night is really sophistry. It defies reason.

[23] Mr Horn had obtained information from the Authority’s Secretariat to the effect that 182 conveyance style on-licences have been issued to vessels which ply the inland and coastal waters of New Zealand. He submitted that in the Milford Sound, vessels conduct overnight cruises when the vessels anchor in the Sound. We would have no difficulty with the sale of liquor, if the vessel was chartered for a cruise out of the Anchorage, and in the course of the journey anchored to allow the patrons to dine and sleep. In our view, a journey which brought the patrons back to the Anchorage, would also be within the spirit and intention of the legislation provided there had been a legitimate chartered voyage. But we do not accept that liquor should be authorised for sale on the “Cat-a-Rac” without a chartered or scheduled journey being undertaken.

[24] Mr Horn referred to an ‘on-the-papers’ decision of Bar-B-Cruise Company Limited LLA PH 835/2004 in which an objector has sought a condition restricting the vessel’s movements, so that it could not operate in the waterways adjacent to the Abel Tasman National Park. We robustly declined to impose such a condition because we did not have the power to do so. We do not accept that the decision is particularly helpful to the applicant, because the licence which was granted, only allowed the sale of liquor during any period of any scheduled cruise or charter. In other words, it was a true ‘conveyance’ style on-licence.

The Authority’s Decision and Reasons

[25] The essential issue in this case, is the legal interpretation of the definition of the word “conveyance”. The definition in the Act is:

“Conveyance” means any ship, ferry, aircraft, hovercraft, train, coach, or other vehicle used for the transport of persons.”

The question is whether in terms of this definition, the company is entitled to an on-licence allowing it to sell and supply liquor to persons who are staying in the vessel’s onboard overnight accommodation. An alternative question might be to ask, when it passed the 1989 Act, did Parliament intend that the use of a vessel in this way, would enable an on-licence to be issued.

[26] In our view, no such change was intended when the new legislation was passed. The 1962 Sale of Liquor Act provided for no less than 15 types of licence including a ship licence. The ship licence authorised the owner of the ship (being a ship in which passengers are conveyed from any place in New Zealand to any other place) to sell liquor to passengers during any voyage. When the 1989 Act was passed by Parliament, the number of licences was reduced to four. It is clear to us that Parliament viewed the large number of speciality licences as unnecessarily cumbersome. The attempt at simplicity did not in our view signal any major change in the types of licences which could be granted. Instead, Parliament legislated to define some of the types or styles of licences which could be the subject of an on-licence such as a restaurant, a tavern, and a conveyance.

[27] Many of the creative features of the 1989 Act were based on the findings of the Laking Committee. Support for our view can be found at Chapter 3 where the Committee discussed the licensing system. It said:

"The greatest factor contributing to the complexity of the present laws is the multiplicity of licences and permits governing the production, distribution and sale of liquor. The present statutes provide for 29 different licences (if the Club Charter is counted as a licence) plus the variety of permits. In our view the four licence system outlined above, represents the optimal blend of certainty and flexibility, and drastically reduces the anomalies inherent in the present licensing system, and makes a positive contribution towards the development of facilities for the sale of liquor to the public less likely to give rise to the problems associated with alcohol abuse.

We propose that the various specialist licences such as ship licence, wine bar licences, airport licences, winemaker's bar permits and works canteen licences should be amalgamated into the on-licence. All share the characteristic of permitting sales for on-premises consumption only and can therefore conveniently be treated alike. At present liquor may be lawfully sold on ships pursuant to a ship licence under the Sale of Liquor Act, and on government owned trains, pursuant to the New Zealand Railways Corporation Act. Operators of other forms of transport should not be prohibited by law from offering a similar service.”

[28] We believe that Parliament has always intended that persons who were being transported by ship, aircraft, coach, or train, should have the ability to consume liquor while undertaking the journey. The issue in this case is whether an on-licence can or should be granted to enable liquor to be sold to persons who are not undergoing any journey at all. This is quite a unique notion. There is no evidence that the new Act contains the prospect that people could board one of these methods of conveyance, in order to eat, and drink, and sleep.

[29] In order for such a notion to achieve legitimacy, a tribunal such as this would have to stretch the words of the Act. The Court of Appeal held in Northland Milk Association Inc v Northern Milk Ltd [1988] 1 NZLR 530, that the Courts can in a sense fill gaps in the Act, but only to make the Act work as Parliament intended. We do not accept that Parliament ever intended to liberalise and modify the Act to this extent. It is our understanding that the system of granting on-licences was simplified, but that in respect of conveyances, the only policy change was to extend the on-licence to other forms of transport as well as ships and trains.

[30] We have analysed the ‘conveyance’ style on-licences which have been issued to vessels which ply inland and coastal waters. There is no indication that the licences allow the sale or consumption of liquor to persons who are accommodated on the vessel, and not involved in any charter or cruise. Almost without exception, there are standard clauses allowing the sale of liquor “At any time on any day during any scheduled sailing or period of any charter”, or “during any scheduled sailing”.

[31] However, in the case of on-licence 072/ON/12/2003, issued to Fiordland Travel Limited, there is a provision allowing the sale of liquor to any person present on the vessel for the purpose of any cruise or charter or for accommodation on the vessel. We have checked the situation with the District Licensing Agency. We note that the vessel is operated in the Fiordland Coast and the Milford Sound area. We do not accept that this licence has any precedental value.

[32] The combination of the rare quality of the adjacent National Park, and the precedent which is involved should a licence be issued, requires us to act in a conservative way in interpreting the Act. The argument submitted by Mr Horn is novel, but we are only prepared to make the Act work in the way in which we believe that Parliament intended. We accept that there are floating licensed restaurants, but we believe that these fall within the spirit and ambit of the Act. In the main these restaurants are annexed either to a wharf or a sea or riverbed, and they have no means of propulsion.

[33] For the reasons we have endeavoured to express, we decline to grant any on-licence allowing the sale and supply of liquor for consumption on the vessel by any person who is not on the vessel for a sailing or chartered voyage. The vessel may be a conveyance, but the persons on board are not using it for that purpose.

[34] On the other hand, although the company has had a very limited amount of charters, it is entitled to sell and supply liquor to those persons who are being transported as part of a chartered voyage or sailing. We propose to adopt the Inspector’s recommendation. We accept that when people are being transported on the “Cat-a-Rac”, the vessel is being used as a conveyance. In the course of the journey or chartered voyage, the vessel may anchor from time to time, and the journey or chartered voyage may even include an overnight stop. However, we have no intention of allowing confusion on this issue. Any sale of liquor on the “Cat-a-Rac” while it is in Anchorage Bay, would have to be part of a scheduled sailing or chartered voyage.

[35] In considering any application for an on-licence the Authority must have regard to a number of criteria which are set out in s.13(1) of the Act. The only relevant issues in this case are contained in s.13(1)(b) and (g). These are

(b) The days on which and the hours during which the applicant proposes to sell liquor :

(g) Any matters dealt with in any report made under section 11 of this Act.

[36] In order to avoid any possible confusion, and because the evidence about the charters was skimpy, we intend to reduce the hours of trading quite dramatically. This is partly to ensure that liquor is not sold to accommodation patrons when the vessel is anchored in Anchorage Bay. If extended hours are required for charter purposes, then a special licence should be granted. After the probationary period of 12 months, the hours of trading may be liberalised, if a demand for later hours while on a chartered voyage is established.

[37] Accordingly, we propose to grant the company a conveyance style on-licence. The licence will enable the company to sell and supply liquor on the vessel known as the “Cat-a-Rac”, journeying in the coastal waters of the Tasman District Council, (and to include the Nelson Harbour), to any person present on the conveyance, and to allow the consumption of liquor by any such person.

[38] Liquor may be sold only on the following days and during the following hours:

Monday to Sunday 9.00 am to 9.00 pm to any person present on the vessel for the purpose of any scheduled sailing, or chartered cruise.

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

[40] 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. The applicant is not entitled to sell liquor until the licence issues.

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

(a) A copy of the licence, and the conditions of the licence, attached to the interior of the vessel so as to be easily read by persons entering; and

(b) Appropriate signs adjacent to every point of sale detailing the statutory restrictions on the supply of liquor to minors, and the complete prohibition on sales to intoxicated persons; and

(c) A sign displayed inside the vessel, which identifies by name the manager for the time being on duty.

DATED at WELLINGTON this 4th day of July 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

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