Red Rock Wanaka Limited [2006] NZLLA 307 (5 May 2006)

Last Updated: 14 March 2010

Decision No. PH 307/2006

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by RED ROCK WANAKA LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at 68 Ardmore Street, Wanaka, known as “Red Rock”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at QUEENSTOWN on 1 May 2006

APPEARANCES

Ms K M Brown – on behalf of applicant

Ms T J Surrey – Queenstown Lakes District Licensing Agency Inspector – to assist

Sergeant A R Nicholson – NZ Police – to assist
Mr A van Dyk – representing Mr and Mrs D L Garvan - objectors

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by Red Rock Wanaka Limited (hereafter called the company) for a tavern style on-licence in respect of premises situated in Ardmore Street, in Wanaka. The directors of the company are David Aitchison Ness and Karen Marie Brown. The application was filed with the Queenstown Lakes District Licensing Agency on 12 March 2003. The company took over an existing business known as “Da-Funk” in February 2003, and has been operating under temporary authorities for nearly three years. The temporary authorities have allowed trading from 10.00 am to 1.30 am the following day.

[2] The premises are located in the central business district of Wanaka. The building is open plan with two balcony areas. There has been a considerable delay in having this matter dealt with, as a number of planning, building and environmental health issues relating to noise have had to be resolved. On taking over the business, the company fully renovated the premises. In addition it has since installed a sound proof ceiling.

[3] The proposal is to operate the business as a bar/cafe. The hours sought are between 8.00 am and 1.30 am the following day seven days a week. These proposed hours are slightly more extensive in terms of the opening time than those currently authorised. On the other hand, the proposed hours are in keeping with the resource consent granted by the Queenstown Lakes District Council.

[4] There was no opposition from the Police, the District Licensing Inspector, or the Medical Officer of Health. The relevant Planning Certificate and Building Code Certificate were filed with the application. The proposed use of the premises as a tavern meets the requirements of the Resource Management Act 1991 and the Building Act 2004. The premises are located in the Wanaka Town Centre Zone, but border directly on to the low density residential zone at the rear of the site. It appears that since the compliance certificate was issued, other building work has been carried out, and a further certificate is awaiting the necessary signature.

[5] The resource consent had 15 conditions, some of which affect this current application, as well as the conditions of any licence which may follow. In addition to the imposition of noise limits, the conditions relevant to this application are as follows:

10. The consent holder shall ensure that:

(a) Patrons do not have access or use of the southern outdoor areas of the premises between 10.00 pm each night and 8.00 am the following day.

(b) Patrons do not have access or use of the northern outdoor areas of the premises between 8.00 pm each night and 8.00 am the following day.

(c) All opening doors and windows on the southern and western fronts are closed by 10.00 pm each night and remain so (apart from normal timely entry and exiting from the building) until at least 8.00 am the following day.

(d) All opening doors on the northern and eastern fronts are closed by 8.00 pm each night and remain so until at least 8am the following day.

(e) Whenever the public entry/exit door is required to be kept closed it is to be assisted by the installation and use of a self-closing door mechanism.

[6] In addition, to the above conditions, there were restrictions on the way the sound system could be altered, and the consent holder was required to provide an audit of the noise emissions by a suitably qualified acoustical consultant. In summary therefore, the company had a number of planning hurdles to overcome as well as its plan to carry out certain additions and alterations to the property.

[7] Public notification of the application attracted an objection from the directors of Te Wanaka Lodge Limited based at 23 Brownston Street in Wanaka. The principal concerns were based on the escape of noise from the premises. The letter noted that the applicant company had made contact with the objectors with a view to addressing their concerns, but that the matter had not yet been resolved. The letter was supported and signed by 11 other residents including Mr and Mrs Garvan. Mr and Mrs Garvan own properties at 5 and 15 Hedditch Street, Wanaka which they and their family use from time to time as holiday homes.

[8] An objection was also received from Mr and Mrs Barton the proprietors of BrookVale motels at 35 Brownston Street, Wanaka. Once again the major concern was that the business generated unacceptable levels of noise, with consequential disturbance of sleep patterns, and general degradation of the residential quality of life. The objectors had other concerns of an environmental nature, about the need to ensure that doors and windows were kept closed.

[9] Ms Linda Ferrier is the Principal Environmental Health Officer employed by Civic Corp, in Queenstown. She submitted a report dated 28 October 2005 in which she advised that sound level monitoring had been carried out on Friday 15 July 2005 at 11.05 pm, and that the noise levels were found to be in excess of the conditions of the resource consent. Accordingly, a letter had been sent to the owners and the holders of the temporary authority, outlining the matters which needed to be addressed. Ms Ferrier gave notice that absent an audit from the company’s acoustic consultant, a review of the conditions of the resource consent would be undertaken.

[10] Ms Ferrier issued a subsequent report on 22 March 2006. In her report, she advised that an abatement notice had been issued against the company on 24 February 2006, because patrons had been observed outside on the balcony after 10.00 pm, and because the balcony doors were open, and music was clearly audible across the street. She confirmed that a Noise Monitoring Report had been received from the company’s acoustic consultant, Malcolm Hunt Associates, on 6 March 2006. This report concluded that the premises were operating in compliance with the noise limits in the District Plan.

[11] Between the filing of the application and the public hearing, a meeting was held between representatives of the applicant company and many of the objectors including Mr and Mrs Garvan. The objectors were shown the sound proof ceiling which had been installed. It is clear that the great majority of the objectors were satisfied with the steps that had been taken. As a result, they withdrew their objections. It is possible that some of the original objections have become blurred with age.

[12] The only remaining objectors showing any interest in the outcome of the hearing appear to be Mr and Mrs Garvan. Sadly, Mr Garvan was hospitalised in January 2006, and it became impossible for he and his family to be present at the hearing. We received a request that their interests be represented by Mr A van Dyk. As it happens, Mr van Dyk resides at 19 Hedditch Street, and has concerns about the proposal although he has no status as an objector. Hedditch Street is located above the premises, and it seems that notwithstanding the installation of the sound proof ceiling, noise still manages to escape to the detriment of those living higher up.

The Hearing

[13] With the consent of the company, we heard from the objectors and the Inspector first. Ms T Surrey is an Inspector employed by Civic Corp. She called Ms Ferrier as a witness. Ms Ferrier has been employed by the Queenstown Lakes District Council and Civic Corp since 1998. She has a Bachelor of Science and the Royal Society of Health Diploma for Public Health Inspectors. In addition she has gained distinction in the Noise Assessment and Control paper studied through the University of Sydney.

[14] Ms Ferrier advised that in the course of the last three years, Civic Corp had received seven noise complaints against “Red Rock” between 29 October 2005 and 31 March 2006. Of the noise complaints received, the noise was deemed not to be excessive on four occasions. On one occasion the premises was closed, and another time the band was playing the last song for the night at midnight. Therefore, it was only on the one occasion at 10.30 pm, that the bass beat was turned down.

[15] Although the bass beat can be very intrusive and is regarded as being unreasonable as it causes sleep disturbance, the record of noise complaints does not reach any sort of factual threshold where the suitability of the applicant company would be brought into question.

[16] Ms Ferrier did however confirm the issue of the abatement notice in February 2006. Mr T Francis, is the Principal Monitoring and Compliance Officer in Civic Corp. He gave evidence that the notice was issued because patrons were observed on the balcony area after 10.00 pm at night, and the balcony doors were left open. He stated that with the general level of non-compliance, he believed that it was time that the company was reminded of its responsibilities.

[17] Ms Ferrier gave evidence that following the issue of the abatement notice, a meeting was held with the company’s directors. This was not only to discuss the abatement notice, but also to consider a plan of action to reduce the emission of the low frequency bass beat noise from the premises. At the meeting, both directors advised her that the owner of the building had agreed to spend a reasonably large amount of capital on improving the ceiling insulation. The work is due to commence soon.

[18] The letter written on behalf of Mr and Mrs Garvan included these comments:

“Basically, the base noise from the nightclub, & noise from music and patrons when the windows & doors are open make it extremely difficult to sleep (if not impossible at times). Although our family are not permanent residents, we occupy the houses together with family friends for several months at a time during the year & our quiet enjoyment of the property is taken away by the noise from the club frequently. For this reason we would oppose the application or require strict noise controls to ensure that we had a reasonable chance of sleeping when the night club is open.”

[19] Mr van Dyk endorsed these comments. He also acknowledged that the noise emission had improved.

[20] Ms K M Brown confirmed that further improvements were planned to try and alleviate any nuisance caused to Mr van Dyk. She produced letters from former objectors who indicated their appreciation of the efforts made to limit the noise. She stated that the business would continue to have security at the door to eliminate trouble outside the building. She believed that many of the early concerns were based on the record of the previous business. Ms Brown acknowledged that the incident which led to the issue of the abatement notice was based on a lack of appreciation of the resource consent conditions. She stated that the manager who was responsible was no longer employed by the company.

[21] We also heard from Mr S Opetaia who is a duty manager and crowd controller. He acknowledged that one of his tasks was to make sure that the doors and windows were closed.

The Authority’s Decision and Reasons

[22] In considering an application for an on-licence the Authority is directed by s.13 (1) to have regard to the following matters:

(a) The suitability of the applicant;

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

(c) The areas of the premises or conveyance, if any, that the applicant proposes should be designated as restricted areas or supervised areas:

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

(e) The applicant’s proposals relating to –

(i) The sale and supply of non-alcoholic refreshments and food; and

(ii) The sale and supply of low-alcohol beverages; and

(iii) The provision of assistance with or information about

alternative forms of transport from the licensed premises:

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

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

(ii) The provision of any service other than those directly related to the sale and supply of liquor and food,-

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

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

[23] In this particular case, the issues are the company’s suitability, the days and hours of operation, and the reports received from Ms Surrey.

[24] The preferred approach to the issue of suitability is contained in the comments of Panckhurst J in Page v Police (unreported HC V Christchurch AP 84/98 24 July 1998). He stated:

“Section 13(1)(a) provides that the applicant for an on-licence must demonstrate his or her suitability. In other words what is required is a positive finding. That implies an onus upon the applicant to demonstrate suitability. Such suitability is not established in a vacuum but in the context of the particular case: for example, the place, the intended business (here in a difficult central city location), the nature of the business itself, the hours of operation and the intended activities, provide the basis for the assessment of the individual.”

[25] The question is whether the company is suitable to operate the style of licence for which it is applying bearing in mind the resource management constraints. As was pointed out at the hearing, the objectors face a difficult task in the light of the lack of objection from any of the reporting agencies. Can the two directors be trusted to obey the Act and the conditions of the licence? They are both mature people. They have no record of any anti-social activity.

[26] The file shows that Mr Ness and Ms Brown have owned and operated other licensed premises in Queenstown since 1998. Mr Ness is the holder of a General Manager’s Certificate and is therefore automatically considered as suitable to be the director of a licence holding company. In this case, the company suffers from the fact that its owners reside in Queenstown. On the other hand, we were impressed with Ms Brown’s commitment to the need to keep to the rules of the District Plan, as well as the efforts being made by the company to further contain the noise within the building.

[27] In the absence of any objections from the Police, District Licensing Agency Inspector, or Medical Officer of Health, we are unlikely to be persuaded that an applicant is unsuitable. In this case there is evidence of some mainly unsubstantiated noise complaints, the issue of an abatement notice, and evidence of a breach of the District Plan’s noise levels. Although these are factors which may be considered under the heading of suitability, we are satisfied that the company is suitable. A licence is appropriate.

[28] We have consistently held that allowing excessive noise to escape, or breaching the noise limits of the District Plan, or creating a nuisance for residential neighbours, are examples of unsuitability. There is also consideration of s.14(7) of the Act. The section reads:

In determining whether to impose conditions under subsection (5)(a), and, if so, what conditions, the Licensing Authority or the District Licensing Agency, as the case may be, may have regard to the site of the premises in relation to neighbouring land use.

[29] This provision allows the introduction of evidence about noise disturbance and other impacts on the environment. Such evidence may then provide a reason for reducing or amending the authorised trading hours. We have considered such a possibility and rejected it. The evidence which was produced falls well short of persuading us that the hours provided in the resource consent should be truncated.

[30] On 21 November 2003, the Queenstown Lakes District Council formally adopted a Liquor Licensing Policy. According to that policy the maximum trading hours which are allowed for Wanaka are 7.00 am to 2.30 am the following day. In this case, the company is restricted to reduced hours by the conditions of the resource consent. In granting any new licence, we prefer to adopt a precautionary approach which can be reviewed on renewal of the licence, and after consideration of the number of special licences which have been applied for during the previous 12 months. In this case however, as the proposed trading hours fall within the Council’s policy, we see no reason to reduce them.

[31] We have also stated that if objectors express concern about what might happen if the licence is granted, such concerns will be unlikely to prevent a grant of a licence where an applicant is suitable and holds the relevant planning certificate. Apprehension of problems is not a ground for an adverse finding of suitability. The way a business is operated, is the sort of issue which can be raised on the renewal of a licence.

[32] Any new licence is issued for a period of one year. This gives residents and the reporting agencies the opportunity to monitor the business during the next 12 months. If the applicants show a lack of commitment to host responsibility, or to the conditions of the licence or the resource consent, then we have the power to refuse to renew the licence, or alter the authorised trading hours. In this way the applicant has a clear incentive to continue ensuring that any concerns expressed by the objectors are considered at all times that the premises are being operated.

[33] In summary, we are satisfied as to the matters to which we must have regard as set out in s.13 (1) of the Act. We grant the applicant an on-licence for the sale and supply of liquor for consumption on the premises to any person present on the premises.

[34] A copy of the tavern style licence setting out the conditions to which it is subject is attached to this decision. The whole of the premises will be designated as supervised.

[35] The hours of operation for the on-licence will be:

Monday to Sunday 8.00 am and 1.30 am the following day.

On the front balcony

Monday to Sunday 8.00 am to 10.00 pm

On the rear deck

Monday to Sunday 8.00 am to 8.00 pm

[36] The licences 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. Also the new code compliance certificate will be required.

[37] 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 sign attached to the exterior of the premises so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor; and
  
• [b] A copy of the licence, and the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through the principal entrance; and
  
• [c] The name of the duty manager placed inside the premises so as to be easily read by persons using the premises.

DATED at WELLINGTON this 5th day of May 2006

Judge E W Unwin J C Crookston
Chairman Member

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