Wolland [2007] NZLLA 1211 (14 November 2007)

Last Updated: 15 February 2010

Decision No. PH 1211/2007

IN THE MATTER of the Sale of Liquor Act

AND

IN THE MATTER of an application by DAVID JOHN WOLLAND pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at State Highway 2, Mangatainoka, known as “Dudley Arms Tavern”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr P M McHaffie

HEARING at PALMERSTON NORTH on 18 October 2007

APPEARANCES

Mr D J Wolland – applicant
Ms D M Robertson – Tararua District Licensing Agency Inspector – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are two matters before the Authority for determination. David John Wolland has applied for the renewal of his on-licence in respect of premises situated in Mangatainoka, known as the “Dudley Arms Tavern”. The business trades under a tavern style licence with hours authorised to sell liquor between 7.00 am and 3.00 am the following day seven days a week. The on-licence was issued on 19 August 2005, and the application represents the first renewal following what is known as the ‘probationary’ year.

[2] We believe that the first renewal application of any new licence is significant. As was said in Craig John Crosse LLA PH 108/2007:

“This renewal application is the first to be dealt with since the business was established and is therefore the most important. As a matter of law all licences are issued for a period of one year. In this way the reporting agencies and members of the public are given the opportunity to monitor the business. If an applicant shows an initial 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 conditions of the licence with particular attention to the trading hours. If the style of the licence is different to the way it was originally

portrayed, then the conditions of the licence may be reviewed. Accordingly, all licence holders have a clear incentive to operate their businesses in accordance with the original proposal and the District Plan. They have an equally strong incentive to show a commitment to the well being of the neighbours and the safety of the patrons.”

[3] No changes were sought to the conditions of the licence, but Mr Wolland sought to redefine the area of licensed premises to include two outside areas to enable the business to provide a smoking area. The two areas were described in the renewal application as, “Outside deck of 40 square metres and lawn area of approximately 300 square metres.” At the hearing we were presented with a plan not drawn to scale. It appears that the proposed lawn area is larger than the inside bar. Because the areas were so extensive, we asked the Inspector to obtain, (at the applicant’s expense), a certificate from the Tararua District Council in terms of s.9(1)(e) of the Act, that the proposed use of the areas for the sale and consumption of liquor, would meet the requirements of the Resource Management Act 1991.

[4] The application did not attract any public objections although there are records of noise complaints over a period of time. The Police had no objections to the renewal of the licence or the redefinition. The Medical Officer of Health originally opposed the renewal based on the following issues: Noise complaints; rudeness to District Council staff; problems with the food preparation area; and fire evacuation concerns. However, the opposition was withdrawn in March 2007 after Mr Wolland had agreed to attend to certain matters such as: a new floor plan with requested designations; complete signage; complete Host Responsibility Policy; complete outstanding health requisitions; and complete a Fire Evacuation Scheme.

[5] There has been a delay in dealing with the applications in a timely way. The business commenced trading under a temporary authority in May 2005, with the on-licence being issued in August of that year. The present Inspector took over her duties in January 2007. At that time the file had not been forwarded to the Authority. After meetings with Mr Wolland, it was decided to give him a reasonable opportunity to address a number of concerns, and bring the operation of the premises up to the required standard. The Inspector subsequently took the view that Mr Wolland had failed to take advantage of the offer. Indeed she advised that he had showed a reluctance and unwillingness to comply with a relatively large number of regulatory requirements. Accordingly the matter was set down for a public hearing.

The Hearing

[6] Ms Diane Margaret Robertson has had 16 years experience working with Local Government, and has previously worked as a Licensing Inspector. She became the sole Licensing Inspector with the Tararua District Council some 10 months ago. She outlined her dealings with Mr Wolland leading to the hearing. She noted that Mr Wolland had been granted a General Manager’s Certificate in May 2007. Her concerns may be dealt with under separate headings.

Accommodation

[7] The premises consist of a two-storey building that had previously been used as a guest-house. After Ms Robertson commenced working with the Tararua District Council, she had a number of conversations with Mr Wolland about using the tavern for commercial lodging, in particular, backpackers. She wrote to Mr Wolland on 3 April 2007. She noted in the letter that to use the premises for backpackers, would require a change of licence, as well as a compliance certificate under the Building Act. No reply was received.

[8] Ms Roberston requested details from Mr Wolland as to the number of guests that had stayed at the premises over two specific weekends, as well as verification of the payment arrangements. The weekends were in March 2007, and covered the “Tui Brewery Christmas Party”, and the “Tui Force Back World Championship”. Her main point of concern was the safety of the guests, as the upstairs part of the building needed to be bought up to standard. If there were to be paying guests, there would have to be a new fire evacuation scheme. Ms Roberston advised that there were a number of occasions that accommodation has been provided, and she suspected that this was on a commercial basis. However, without some form of co-operation from Mr Wolland, she was unable to have her suspicions confirmed.

[9] When he gave evidence, Mr Wolland denied that he had ever provided commercial accommodation. He stated that he had never charged any person for staying on the premises. He gave the names of the persons who had stayed at the premises during the two weekends in question, and confirmed that they were private guests. Although we had little faith in Mr Wolland’s objectivity, he has stated on oath that he had no intention of using the premises for commercial purposes, and we believe that he must be accepted at his word. If at any time he does allow persons to stay on a commercial basis, without obtaining the necessary consents and approvals, then we would regard that as a mark of his unsuitability to hold the licence. In such circumstances, given the potential safety risk, the continuation of the licence would need to be considered.

Fire Evacuation Scheme

[10] When he filed his renewal application, Mr Wolland failed to complete the Fire Evacuation Scheme. Various letters had been sent to him requesting that he do so. It was only on 24 September 2007, (when the renewal application had been set down for hearing), that a revised Evacuation Scheme was sent to the Fire Safety Officer. At the time of the hearing, final approval of the Fire Evacuation Scheme was awaited. Mr Wolland took his time complying with the requests that had been made. He decided that there were other priorities.

Food Registration

[11] Since the premises were inspected in August 2006, there have been outstanding Health Requisitions. Mr Wolland was given the opportunity to complete the work required. Once again the evidence showed that he did not see this as a priority. He originally agreed to have the work done by May 2007. A letter from the Council’s Environmental Health Office dated 18 August 2006, referred to six matters to be completed. Ms Robertson advised that as at 8 October 2007, five of the six requests had been attended to. Mr Wolland gave evidence that the last remaining requisition, (the vinyl floor), had just been completed, although no official confirmation was available.

Host Responsibility Policy

[12] Ms Roberston advised that the Tararua District Council has a Sale of Liquor Policy. This policy requires that all licensed premises have a host responsibility programme in place. Mr Wolland had been requested to prepare and lodge a programme during a meeting on 2 March 2007. The original proposal was for him to have the programme completed by May 2007. There was no formal response. Mr Wolland finally produced a policy at the hearing. Although he stated that this had been available prior to the hearing, we have doubts about his claim.

Noise

[13] Ms Robertson gave evidence that from March 2006, the “Dudley Arms Tavern” has been the subject of ongoing noise complaints. These have occurred on various Saturday nights and in the early hours of Sunday mornings. The history of complaints corresponds with the licensee’s decision to have bands and other entertainment at the premises. The first excessive noise notice was issued on 11 March 2006. The history of complaints is:

11 March 2006 Excessive noise notice

8 April 2006 Excessive noise – no contact could be made on phone – no notice issued.

24 April 2006 Excessive noise from karaoke and patrons – verbal warning complied with.

7 May 2006 Excessive noise notice.

27 May 2006 Excessive noise notice from band and patrons

27 May 2006 Band required to shut down

30 October 2006 Excessive noise notice from band.
10 February 2007 Two noise complaints. Excessive noise notice.

23 September 2007 Noise complaint. When noise contractors arrived band had stopped.

[14] The evidence shows that throughout this time there have been meetings held and warning letters written. Mr Wolland has been quite uncooperative throughout the process. His lack of concern about the impact of noise on his neighbours was very evident at the hearing.

[15] The District Council obtained the services of an Acoustic Consultant. Mr Neil M Jepsen has given evidence before us previously and we are in no doubt about his professional competence and ability. He measured the noise emissions on the evening of 27 May 2006. The noise measurements were made inside the boundary of the nearest residence. In his report, Mr Jepsen confirmed that the operative Tararua District Plan’s noise limits for the area are:

At all times 45 dBA L₁₀ and 75 dBA L_max

[16] Mr Jepsen advised that the Lmax limit was not exceeded at any time but the L10 limit was exceeded in every measurement recorded. The dominant noise was from a band playing inside the hotel. He noted that when the band was silent even the people noise exceeded the limit. He said that even at 12.30 am, when the band had ceased playing, the noise level was still in excess of the District Plan due to people noise and quieter music from inside the premises. His conclusion was that the level of noise was significantly above the District Plan limits, and the level was sustained and continuous. He stated that the level was high enough to cause sleep disturbance and annoyance to most people.

[17] Mr Jepsen sent the Council an account for his services. The Council in turn sought to recover the cost from Mr Wolland. Not unnaturally, Mr Wolland declined to pay. After all he had not agreed to employ the consultant or pay the account. On the other hand the Council had advised him that all costs associated with the monitoring and control of excessive noise would be his responsibility. The issue ended up before the Disputes Tribunal and we understand that no order was made against Mr Wolland.

[18] We heard from Ms P A Denbee who is one of the near neighbours. She was very concerned about the proposed garden bar as well as the noise from the tavern, particularly the bands that keep her awake. We also heard from Ms V D Spicer who is Mr Wolland’s partner. She gave evidence to confirm some of Mr Wolland’s assertions. Mr Wolland took the opportunity at the hearing to make disparaging comments about both Inspectors. He believed that he was doing a good job with the running of the premises and had carried out a number of improvements. He could see no reason why the renewal application, as well as the application for redefinition of the premises, should not be granted.

The Authority’s Decision and Reasons

[19] Pursuant to s.22 of the Act we are required to have regard to the following matters when considering the application:

(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; and

(d) Any matters dealt with in any report made under s.20 of this Act.

[20] On a renewal application, it is up to the applicant to establish his suitability to continue to hold the licence in its present form. In Page v Police (unreported HC V Christchurch AP 84/98 24 July 1998) Panckhurst J commented on the issue of suitability in this way.

“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.”

[21] What we are discussing here is a country hotel trading as a tavern with associated food and gaming. Problems have occurred because of the decision to have bands playing in the weekends. Although he has been advised of his responsibility, Mr Wolland seems to have difficulty in accepting that the noise levels from the premises can be so disturbing. On the other hand, a tavern such as this can be a focal point for the community. We are not unaware that the Police have not objected to the renewal.

[22] Nevertheless, the inability to control the escape of noise reflects on the suitability of a licensee to continue to hold an on-licence. In the decision known as Paihia Saltwater (2001) Limited LLA PH 391/2001 we made a number of comments about the issue of noise. Although the Inspector has referred our comments to Mr Wolland, he has taken little notice, so we repeat them:

"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 to 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”.

[23] In this case, Mr Wolland has failed to take the concerns seriously. The record of noise complaints is unacceptable for a business that has just commenced to trade. There was no sign of a noise management plan, or an independent report from an acoustic consultant. Mr Wolland was in complete denial about the problem, and showed no interest in changing the operation of the business. He was more focussed on the improvements he had made to the property.

[24] The Act prevents us from imposing conditions in an on-licence governing the playing of music. One of the options open to us is to limit the trading hours. In considering an application for the renewal of an on-licence, we are governed by s.23 of the Act. That section reads:

(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 subsection 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.

[25] In Excel Promotions Limited v Police [1998] NZAR 72/79 Heron J explained our jurisdiction in these terms.

“Provided the safeguards in the Act are duly observed, the Sale of Liquor Act in itself does not and should not be seen as entrenching the rights of licensees if after proper inquiry, the Liquor Licensing Authority, a specialist body, considers licence renewal appropriate but only with different or further conditions applying to the licence.”

[26] When considering any renewal application, we may, in our discretion, alter the trading hours in response to reports or objections. We are given the power to review the days on which, and the hours during which liquor may be sold. The regulation of the hours of trading has always been recognised as a useful tool in controlling liquor abuse issues as well as noise nuisance. Decisions of the Auckland High Court in Sheepys Limited AP77-SW01 and Club Raro Limited AP86-SW01 both dated 10 December 2001, confirm the Authority’s discretion to cut back a licensee’s operating hours on a renewal. In the former case, O’Regan J stated:

“The Authority was entitled to consider the impact of noise as an aspect of the manner in which the licensee had conducted the sale and supply of liquor pursuant to the licence (s.22(c)), and was also entitled to consider this because of the relevance of s.14(7) to its consideration of conditions under s.23(1)(b)."

[27] On the other hand, the object of the Act refers to a regulatory system that is ‘reasonable’. In this case, there have been few liquor abuse issues raised. The main reason for altering the trading hours would be to ameliorate the nuisance resulting in excessive noise notices being issued. It seems to us that Mr Wolland needs to serve a further ‘probationary’ year. If he is able to show an improvement in the way the business operates, then it may well be that the trading hours can be reviewed. The corollary also applies. In the absence of a significant improvement in the way that Mr Wolland operates the business, the trading hours will be further reduced. A return to the original trading hours could result from a significant change in the licensee’s operations supported by a noise management plan or a report from his acoustic consultants.

[28] We were less than impressed by Mr Wolland’s attempts to question the competence of the Inspector. If he continues to show a lack of co-operation with the monitoring agencies, then the very existence of the licence could be called into question.

[29] In N.B.T. Limited LLA PH 584-585/2005 it was said:

“From time to time in proceedings before us, parties seek to attack the messenger rather than the message. In doing so, they need to know that they are more likely to send out a signal about their own suitability to hold a licence. We accept that all parties are entitled to be dealt with fairly and professionally by District Licensing Agency Inspectors, the Medical Officer of Health, and the Police. Where this does not happen we have not hesitated to make comment. However, the great majority of all inspectors, and health professionals, and members of the Police who have appeared before us have been totally professional. We rely on them to monitor and enforce the Act. Without their assistance, there would be no point in having a licensing system. Those who seek to indirectly undermine and intimidate the reporting agencies need to understand that they are unlikely to receive any sympathy in this forum.”

[30] There is a difficulty about the designations. Currently the main bar is separated from the lounge and restaurant by temporary partitions. Later in the evening the partitions are removed to enable the bar to be expanded. However, when the restaurant is being used, the licensee requires that the area be unsupervised so that minors can be admitted. We intend to designate all bars as supervised. A bar is defined in the Act as any part of the tavern that is used principally or exclusively for the sale, supply or consumption of liquor. Accordingly when the area is used as a restaurant and lounge it will be undesignated. When it is used as bar it will become designated. The present games room will be designated as restricted. When the games room is changed there will have to be a further application for redefinition. At the same time, the relevant designations will be changed.

[31] The redefinition is dealt with under Regulation 7(3) of the Sale of Liquor Regulations 1990. The regulation reads as follows:

“If, in any case to which subsection (2) of this regulation applies, the licensee subsequently wishes to sell or supply or allow the consumption of liquor in any other part of the premises, the licensee shall apply to the Licensing Authority or District Licensing Agency for authority to do so, and shall attach to the application a scale plan showing the proposed changes.”

[32] It will be seen that there is a discretion whether or not to allow the application and at the same time the trading hours need to be reviewed. Currently we are awaiting confirmation that the proposal does not offend against the District Plan. However, we should indicate that at this time we have no intention of redefining the premises to include the large lawn area. The licensee has already shown an unwillingness to comply with the noise limits of the District Plan and we have no confidence that he would operate large outdoor functions without offending the neighbours. He may apply for special licences for event outside and we will then have a better idea of what is envisaged should he make a further request.

[33] Subject to Council approval on the resource management issue, and subject to the receipt of a scale plan we propose to allow the deck to become part of the premises. We anticipate that the area will be used not just for smokers but for outdoor eating as well. However, the hours of operation will be from 7.00 am to 3.00 pm. At this time we have little confidence in Mr Wolland’s ability to control the noise levels of his patrons at later times. If patrons wish to smoke outside those hours then they will be unable to drink.

[34] For the reasons given the on-licence issued to David John Wolland will be renewed for two years to 19 August 2008. The designations referred to above will be imposed in respect of the renewed licence. The trading hours will be:

Monday to Sunday 7.00 am to 1.30 am the following day

DATED at WELLINGTON this 14th day of November 2007

Judge E W Unwin
Chairman

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