S B Trading Company Limited [2005] NZLLA 721 (20 October 2005)

Last Updated: 21 January 2012

Decision No. PH 721/2005

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by S B TRADING COMPANY LIMITED pursuant to s.31 of the Act for an off-licence in respect of premises situated at 25A Elliott Street, Papakura, to be known as “Super Liquor”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 11 October 2005

APPEARANCES

Mrs M Suri – on behalf of applicant
Mr A J Turner – Papakura District Licensing Agency Inspector – to assist
Mr S Hull – Secretary Papakura District Licensing Agency – to assist
Ms J Hames – Director of Policy and Corporate Services Papakura District Council –
to assist
Mr C Chen – objector

Mr G W Archibald – objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an opposed application for an off-licence. The applicant is a private company known as S B Trading Company Limited (hereafter called the company). The company’s directors and shareholders are Sarvdeep Singh Suri, and his wife Maninder Kaur Suri. Mr Suri is the holder of a General Manager’s Certificate, and he has been spending time at two different liquor outlets to gain experience. Mrs Suri is a Justice of the Peace. They were granted residency in New Zealand in 1992.

[2] The Suris currently own and operate two retail outlets in Manurewa, being a furniture centre, and a Big Bear franchise. Mrs Suri produced a reference from the operations manager of the Southmall in Manurewa confirming them as astute, honest, dependable, and trustworthy business people.

[3] Mr and Mrs Suri decided to open two stand alone liquor stores under the “Super Liquor” franchise, one in Manurewa and the other in Papakura. The application for a bottle store in Manurewa was not opposed, and was recently granted on the papers by the Manukau District Licensing Agency. The company has leased a property at 25A Elliott Street in Papakura. There are two separate premises on the site. One is occupied by “Pizza Hut” which operates a takeaway business. The other needs to have a refit before it can be operated as a bottle store.

[4] The business is to be known as “Super Liquor”, and the hours sought are from Monday to Sunday, between 9.00 am and 11.00 pm. The company requested a supervised designation for the premises. As we have indicated in other decisions, this is a forward thinking move by the company, aimed at assisting the prevention of liquor sales to minors. The application for the off-licence was filed by JLW Consultancy Limited on 22 August 2005.

[5] Publication of the application attracted 18 letters of objection from residents and business people in Papakura. Fifteen of these letters were identically worded. The main concerns expressed in the letters related to the proposal to trade up to 14 hours a day, seven days a week. It was difficult to ascertain whether the objectors resided or operated in close proximity to the company’s proposed premises. Pursuant to s.32(1) of the Act, all objectors must have a greater interest in the application than the public generally.

[6] In addition, a petition was filed. It contained in excess of 250 signatures. A large number of the signatories did not reside in the district, and others gave no indication of their residential addresses. We have frequently indicated that we regard petitions with a degree of caution, because a significant number of those who sign the petition have no means of persuading us that they are able to demonstrate a greater interest than the public generally.

[7] Furthermore in this case, the petition did not address the criteria set out in s.35(1) of the Act. It read:

“We the undersigned object to any more liquor stores being opened in Papakura. For the population in Papakura there is too many now (over 10 liquor stores, not counting bars and cafes).”

[8] Unlike its predecessor, (the Sale of Liquor Act 1962), the 1989 Act is not concerned with the economic protection of existing licences, or with restricting the number of licences in any locality. That is a matter of planning. Under the new Act with its liberal tenor, it is no longer necessary, or indeed possible, to establish that the grant of a new licence is ‘necessary or desirable’ before it can be granted. Indeed, as will be mentioned later in connection with the objection from Mr C Chen, we are specifically prevented from taking into account any prejudicial impact which a new licence may or may not have on any other business. Parliament has deliberately adopted a ‘free market’ approach to the issue of liquor licensing. Accordingly, it is not proposed to take the petition into account.

[9] There were no objections from the Police, the Medical Officer of Health, or the District Licensing Agency Inspector. One of the legal grounds for objecting to an off-licence is the days on which, and the hours during which, the applicant proposes to sell liquor. As this issue was raised by a number of objectors, the application was set down for a public hearing.

The Application

[10] Mrs M K Suri gave evidence on behalf of the company. She submitted that the proposed location was ideal because the next door premises operated until late, and a nearby video shop had similar working hours to those proposed by the company. She confirmed that it was intended to employ another certificated manager to assist in the conduct of the Papakura business. She acknowledged to Mr Archibald that there were three car parks, which were located at the rear of the property.

[11] Included with the application was a planning certificate from the Papakura District Council for the purposes of s.31(1)(e) of the Act. This certificate confirmed that the use of the premises at 25A Elliott Street as a retail outlet for the sale of liquor off-site, met the requirements of the Resource Management Act 1991. There was also a certificate confirming that the existing building met the requirements of the Building Act 2004.

The District Licensing Agency Inspector

[12] Allan James Turner is a Liquor Licensing Inspector for the Papakura District Licensing Agency. He gave a comprehensive overview of the application. He confirmed that the proposed bottle store satisfied the relevant criteria in s.36(1) of the Act. He had interviewed the directors, and confirmed that in his opinion, the company was suitable to hold a licence. He had no concerns about the proposed management of the business.

[13] Mr Turner stated that the proposed hours reflected the normal acceptable hours for stand alone off-licences, and were similar to other off-licences in the Papakura Central Business Area. He produced a schedule showing that there were five such premises of which two have been recently licensed. All but one operated until 11.00 pm from Monday to Saturday, and two of the off-licences closed at 11.00 pm on the Sunday. Of the remaining three off-licences, two closed at 10.00 pm on the Sunday, and one closed at 9.00 pm. All five premises operated seven days a week.

[14] Mr Turner acknowledged to Mr Archibald that there had been a recent change in Council policy, in that all applications for an off-licence must include a s.31(1)(e) certificate at the time they are filed. He said that he was aware that there were concerns about the issue of the Resource Management certificate in this case, but had checked the position, and had been assured that the certificate had been correctly issued. Mr S Hull is the Secretary of the Agency, and he also stated that issues such as the requisite number of car parks, had been taken into account when the certificate was issued.

The Objections

[15] Only two objectors appeared to support their objections, although Mr Archibald stated that he was speaking for other business proprietors. Where objectors do not appear at a public hearing, and no explanation or reason is given for their absence, the Authority is inclined to give their objections little weight. This is because it is not known whether the objectors still wish to maintain their objections, or whether they have since been satisfied that their concerns are no longer tenable. Not only do such objections escape any public scrutiny, but also the objectors lose the opportunity of hearing from the applicant about the true nature of the proposal.

[16] In this case, it was apparent that the extent of community concern was not as high as had been indicated by the objection process. Neither objector sought to question the company’s suitability.

[17] Mr Calum C Chen is the proprietor of a stand alone bottle store called “Papakura Liquor”. That business trades seven days a week from 9.00 am to 10.00 pm. Mr Chen contended that there were too many liquor stores in the area where he trades. He believed that there was very strong competition in the liquor retail market. Consequently, he argued that the price was driven down encouraging people to consume more alcohol. He said that he was worried about the future of Papakura if more licences were issued.

[18] Essentially, Mr Chen’s objection was based on protecting his business. As stated, we are unable to take into account any prejudicial effect that the grant of the licence might have on any existing licensed business. Section 35(2) of the Act reads:

The Licensing Authority or District Licensing Agency, as the case may be, must not take into account any prejudicial effect that the grant of the licence may have on the business conducted pursuant to any other licence.

[19] We note that Mr Chen’s off-licence fell due for renewal on 23 January 2005. An objection was lodged to the renewal of his licence based on the fact that there were too many licensed premises in the locality. In a decision Calum Chen (formerly known as Chao Chen) LLA PH 191/2005, we granted the application on the papers. We noted that the ground for the objection did not relate to any of the criteria to which we must have regard under s.45 of the Act.

[20] However, we need to address the argument that by granting more licences we are encouraging an increase in consumption, and consequently, encouraging liquor abuse. To do so would be contrary to the object of the Act. We do not accept the argument that increased liquor outlets necessarily leads to increased liquor abuse. Nor do we accept that we have any jurisdiction to regulate the number of outlets in any community. Although the number of licences in the country has risen dramatically since the Act was passed, there has been no known corresponding increase in either total liquor consumption, or national liquor abuse.

[21] The issue was considered by the High Court in Goldcoast Supermarket Ltd [2001] 2 NZLR 769. In that case two supermarkets were granted the right to sell liquor 24 hours a day. The Medical Officer of Health made submissions on the potential or possible health impact of such liberal hours. When considering the Act’s provisions, Wild J stated at paragraph [35]:

“In practical terms. I think that means granting applications only to responsible applicants who satisfy the Authority that they have suitable premises and will have proper controls over the sale of liquor from those premises during the hours of sale which they are seeking.

There is no requirement on the Authority in s.35(1) in granting an application to achieve a reduction in liquor abuse.”

[22] Mr Glen Archibald is the proprietor of a business in close proximity to the proposed bottle store. Additionally, he is a Papakura District Councillor, and has held this position for the past 13 years. He is the second Papakura District Councillor to give evidence opposing the grant of an off-licence. The last occasion was on 17 January 2005 in respect of premises known as “Clevedon Road Liquor”. There is no doubting Mr Archibald’s sincerity. His evidence was in three parts.

[23] Initially, Mr Archibald requested that we defer any decision on the application, until such time as the Papakura District Council had adopted a policy dealing with liquor issues. Mr Archibald produced a copy of a resolution passed by the Council’s Planning and Regulatory Committee on 10 August 2004. The members requested that a report be brought to the Committee, outlining options for controlling the consumption of liquor in public places, and the location and numbers of liquor outlets. No such report has been received. It appears that some of the delay in producing the report has been caused by an inability to employ suitable staff. This issue has now been addressed.

[24] Mr Archibald also reported that the day before the hearing, the Planning and Regulatory Committee had again met. On that occasion the Committee had other regulatory issues such as graffiti, and commercial sex premises or brothels, to deal with. The Committee resolved that all three items were of equal importance to the community.

[25] As we indicated to Mr Archibald, there is no timetable for producing such a policy. We are not prepared to defer an application indefinitely. In our experience, the planning and consultation process leading to the production of a liquor policy can take a long time. As Ms J Hames pointed out, if the Committee wished to limit the number of liquor outlets, then a change to the District Plan would be required. The time required to process such a change, is also limitless.

[26] In our experience, liquor policies can be very helpful. They offer guidelines about trading hours for various licensed establishments, but they do not normally restrict the number of licences which may be issued by the Agency or the Authority. In our view it would be unreasonable to require a potential business to await the formulation of a policy, which in its final form, may have no impact at all on the present application’s outcome.

[27] On the second issue, (if deferment was not an option), Mr Archibald requested that the hours of operation be in keeping with the surrounding businesses. He suggested that no trading be allowed on Sundays, and that the trading hours for the remainder of the week be 9.00 am to 7.00 pm. He argued that more liberal hours would be unacceptable to the neighbours.

[28] Finally, Mr Archibald set out to show that the Council had erred in granting the Resource Management Certificate, particularly in relation to the number of available car parks. He produced an extensive file showing some of the planning history of the site. It is clear that in 2001, Restaurant Brands New Zealand Limited (hereafter called the applicant) was seeking consent to operate a Pizza Hut takeaway/delivery outlet on the site where it now stands. At that time, the next door premises where the proposed bottle store is to be sited, was being operated as a retail outlet.

[29] A traffic assessment, and an assessment on environmental effects were attached to the application for resource consent. In addition, the applicant enclosed a plan to establish a joint parking area with the occupants of number 27 Elliott Street. The amount of documentation was understandable given the nature of the proposed business, and the need to use a joint car parking area on an adjoining site. However, the applicant was then able to find two further car parking spaces on its site, and accordingly, the application became a permitted activity. The resource consent application was accordingly withdrawn.

[30] Subsequently, the applicant sought certificates to enable it to apply for an off-licence. These certificates were issued by the Council in a form similar to the certificates produced by S B Trading Company Limited. However the applicant did not pursue this application either. No doubt it was concerned about the implications of the High Court decision dated 10 December 2001, known as Lopdell v Deli Holdings Limited and Restaurant Brands New Zealand Limited AP 97/01 (High Court Auckland). In that decision Randerson J concluded that s.36 (4) of the Sale of Liquor Act 1989 precluded the grant of an off-licence to premises on which the principal business was the sale of food. Such a ruling did not affect supermarkets and groceries.

[31] Having viewed the papers, we do not accept that the Council has acted any differently in this current case. In our opinion, the only resource issue in this case appears to be the requisite number of car parks for the proposed business. We understand from the Council Officers that the company was able to rely on the fact that there were existing retail use rights associated with the site. We are unable to go behind the certificate issued by the Council. If Mr Archibald wishes to challenge his Council in a different forum, that is a matter for him. Any challenge made to the validity or appropriateness of such a certificate is a matter for the Environment Court, or the High Court by way of review.

[32] Parliament has separated the processes for considering “site suitability” for licensed premises, from those of the “personal suitability” of applicants. This Authority considers the applicant’s suitability. The local authority considers site and location suitability. This is achieved though planning processes under the Resource Management Act 1991. In summary, the Suris have a planning approval, and they are entitled to rely on it.

The Authority’s Decision and Reasons

[33] In considering an application for an off-licence the Authority is directed by s.35(1) of the Act to have regard to a number of criteria. Although, many of the criteria are not relevant to this case, we set them out in full so that there can be no misunderstanding. They 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 should be designated as restricted areas or supervised areas:

(d) The steps proposed to be taken by the applicant to ensure that the requirements of this Act in relation to the sale of liquor to prohibited persons are observed:

(e) Whether the applicant is engaged, or proposes to engage, in -

(i) The sale or supply of any other goods besides liquor; or

(ii) The provision of any services other than those directly related to the sale or supply of liquor, -

and, if so, the nature of those goods and services:

(f) Any matters dealt with in any report made under section 33 of this Act.

[34] In this case, the only relevant matter is the proposed days and hours of trading. When measured against the hours operated by other similar licensed premises in the area, the proposed trading days and hours could not be described as excessive. We do not accept that granting such hours will create any disturbance to the neighbourhood, or adverse impact on the other businesses. Nor do we accept the suggestion that the company should be prevented from selling liquor on a Sunday when all the other five premises have the right to do so. If the District Council introduces a liquor ban in the central business district, then there is even less chance of any potential nuisance.

[35] It is our experience that a liquor store which can only sell or deliver liquor for consumption off the premises, does not attract the sort of behaviour which might be of concern to Mr Archibald or the people he represented. In our view, liquor should be viewed as just another retail product. The fact of the matter is that the company has been given resource permission to establish an off-licence at this site. If we are wrong and there are concerns about disorder, then those are matters which can be canvassed in the renewal process.

[36] A case which is right on point is Cayman Holdings Limited LLA PH 145/2001. In that case, the Authority stated:

“The Authority’s approach has been to satisfy itself that the applicant is suitable and will uphold the law. The Police or District Licensing Agency Inspector are empowered to apply to vary, suspend or cancel a licence pursuant to s.132 of the Act if problems arise. Apprehension of problems alone is not sufficient to prevent a suitable applicant, particularly one supported by a District Licensing Inspector and the Police from exercising rights granted by the District Council.”

[37] Any new licence is issued for a period of one year. This gives residents and the authorities the opportunity to monitor the operation of the licence. If the applicant shows a lack of commitment to host responsibility, or to the conditions of the licence, then the Authority has the power to refuse to renew the licence, or alter the trading hours. In this way the applicant has a clear incentive to ensure that the community concerns as expressed by Mr Archibald are kept in mind.

[38] We are satisfied as to the remaining matters to which we must have regard as set out in s.35(1) of the Act. We grant the applicant an off-licence for the sale or delivery of liquor for consumption on or from the premises, to any person for consumption off the premises.

[39] The hours of trading will be:

Monday to Sunday 9.30 am to 11.00 pm

[40] A copy of the licence setting out the conditions to which the licences will be subject will be attached to this decision. The premises will be designated as supervised. The licence will not issue until the expiry of 20 working days from the date of this decision. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal.

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

[42] The applicant’s attention is drawn to ss.48 and 115(2) of the Act obliging the holder of an off-licence to display:

(a) A sign attached to the exterior of the premises so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor; and

(b) A copy of the licence, and the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through each principal entrance; and

(c) The name of the manager on duty is to be prominently displayed inside the premises so as to be easily read by persons using the premises.

DATED at WELLINGTON this 20th day of October 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

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