Hardgrave, re [2007] NZLLA 398 (30 April 2007)

Last Updated: 13 February 2010

Decision No. PH 398/2007

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of a rehearing pursuant to s.110(3) of the Act of an application by PETER CRAIG HARDGRAVE and PAULA MILLS-HARDGRAVE, trading in partnership, pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 17 Brougham Street, New Plymouth, known as “Café E.S.P. Resso”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin

Member: Ms P A Ballard

HEARING at NEW PLYMOUTH on 11 April 2007

APPEARANCES

Mr P C Hardgrave – applicant
Ms C B Bailey – objector – in opposition
Mr M E Clearwater – New Plymouth District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

[1] This is a rehearing pursuant to s.110(3) of the Act of an application by Peter Craig Hardgrave and Paula Mills-Hardgrave, trading in partnership, for renewal of an on-licence and redefinition of the licensed area in respect of premises known as “Café E.S.P. Resso situated at 17 Brougham Street, New Plymouth.

[2] The application was filed in January 2006 and attracted a number of objections from neighbours, all of whom cited excessive noise emanating from the premises. No variation to the conditions was sought. The hours authorised are 7.00 am to 3.00 am the following day, Monday to Sunday. The application was not opposed by the reporting authorities. The matter was due to be set down for a public hearing. Prior to that, the objectors were invited to indicate whether or not they wished to be heard. None of the objectors responded in the time given. As a consequence the Authority concluded that the objectors’ concerns had been satisfied and, as there was no objection to the granting of the on-licence from any other quarter, the application was granted on the papers. A decision to this effect was issued on 7 June 2006 - Peter Craig Hardgrave and Paula Mills-Hardgrave LLA 405/2006.

[3] Subsequently, the Authority received notice that one of the objectors had sent confirmation that she wished to be heard although, for some reason, the Authority had not received that notice. The Inspector arranged an informal meeting in New Plymouth on 28 July 2006 with the Authority so that the objector could raise her concerns with the applicant and the agencies. This meeting did not, however, assuage the objector’s concerns about the operation of “Café E.S.P. Resso”. In the circumstances, the Authority decided to rehear the matter pursuant to s.110(3) of the Act.

The District Licensing Agency Inspector

[4] In his initial report to the Authority, the Inspector indicated that he was satisfied that the applicants met the criteria set out in s.22 of the Act for renewal of the on-licence. He noted that in the 6 month period from 1 July 2005 there had been a number of complaints about excessive noise from bands, music generally, and people noise allegedly coming from this premises. The Inspector pointed out that “Café E.S.P. Resso” is in close proximity to a busy tavern that occupies the ground floor of the building where the Sunflower Lodge Backpackers is located. There are also a number of apartments close by. On the side of the subject premises there is an open deck which looks out over the Huatoki Stream. At the time the renewal application was lodged the building opposite the deck was in the process of being demolished. That site is now an open grassed area.

[5] The Inspector advised that in August 2005 he had written to the applicants to advise them that complaints had been received about noise. He also reminded them that their on-licence was a restaurant style licence and any functions that were held had to comply with that licence.

[6] On 20 January 2006 there was a function at “Café E.S.P. Resso”. A noise complaint was made and was found to be substantiated. An Abatement Notice was issued at 3.03 am because of the volume of the music. At that time there were still 5-6 people consuming liquor on the premises and the adjoining deck. Following this incident, the Inspector issued a formal warning for non-compliance with the condition on the licence requiring patrons to be off the premises by 3.00 am.

[7] Since that time, there have been a number of alleged noise complaints that were found to be not excessive. In one instance, another premises was the source of the noise.

[8] In summary, it was the Inspector’s view that the applicants satisfied the criteria set down in s.22 of the Act. He considered that, despite the allegation that the applicants had been uncooperative when dealing with the objectors, their suitability had not seriously been called into question. He accepted that they could have been frustrated with the allegation that they were responsible for noise when it was established that that was not always the case. The Inspector said he was satisfied that the applicants had managed the premises pursuant to the licence and noted that there were no objections to the application from the Police, the Medical Officer of Health or the District Licensing Agency.

[9] The Inspector provided a supplementary report dated 24 July 2006 prior to the meeting with the objectors, the Authority and the applicants. He advised that in the six months since the renewal application was lodged the premises had not come to notice in any adverse way. There had been no reports of breaches of the Act, no noise complaints and no appearances on the Police AlcoLink database. He said that the applicants had confirmed that they no longer intended to incorporate the adjacent vacant room into the premises so they no longer sought to redefine the licensed area.

[10] The Inspector also noted that the demolition of the adjoining building had been completed to make way for an open grassed area. He said that the applicants had advised that they no longer used the entrance onto James Lane, thus minimising the escape of noise along the side of the building adjoining the neighbouring backpacker accommodation.

[11] At the hearing, the Inspector confirmed that the applicants no longer sought to redefine the licensed area since the adjacent space was now leased to another tenant. He noted that in the 15 months since the renewal application had been lodged, there had been only one noise complaint in September 2006. The complaint was investigated within five minutes and there was no breach.

The Objectors

[12] Chere Bailey is one of the owners of the Sunflower Lodge Backpackers. She spoke on her own behalf as well as on behalf of Megan Neumann and Antony Saunders who manage the Sunflower Lodge. Ms Bailey has owned Sunflower Lodge for about five years. It is located on the upper floor of a building on the other side of James Lane, which is the service alley between Sunflower Lodge and “Café E.S.P. Resso”. The lower floor of the building is occupied by “Icons Sports Bar”.

[13] Ms Bailey said that there had been a number of occasions since the end of July 2005 when “Café E.S.P. Resso” had been the source of excessive noise. One of these was early on the morning of 21 January 2006, when guests at Sunflower Lodge were woken by extremely loud music coming from “Café E.S.P. Resso”. The manager tried to telephone the applicants but no one picked up the phone. The manager then lodged a noise complaint, which was investigated by the Council. The noise was found to be excessive and an Abatement Notice was issued.

[14] Ms Bailey said she had tried to speak to the applicants about noise from the premises but that she found them to be uncooperative and unwilling to come to any agreement about how noise issues could be managed between them. She said that because of the applicants’ attitude, neither she nor her managers had bothered to contact them about noise coming from the premises in the past six to eight months, preferring to await the outcome of this hearing. Ms Bailey emphasised that her business had an excellent relationship with the sports bar downstairs and that noise problems did not arise with them. In her view the applicants did not respect the needs of the surrounding businesses and the neighbourhood into which they had recently moved.

[15] Ms Bailey noted that many of her guests were from overseas and came to New Plymouth to enjoy the town and the province’s many outdoor activities. She was concerned that, if guests were kept awake late at night by loud music, word would soon get out and it would affect her future business as well as tourism in Taranaki in general. While she accepted that some noise was inevitable in a central city location, she asked the Authority to limit the trading hours of “Café E.S.P. Resso” so as to minimise the disruption to sleeping guests. She suggested that the premises should close at 11.00 pm.

[16] Ms Bailey acknowledged that there had been no problems with the way the premises had been operated over the previous 12 months but was concerned in case the licensees allowed the business to slip back to the way it was previously operated.

The Applicant’s Submissions

[17] Peter Hardgrave trades in partnership with his wife. He was the spokesperson for the partnership. He said that they had run premises in the central city for some years and had both held General Manager’s Certificates for over seven years. They moved to the current site around the beginning of 2005. The on-licence is a restaurant style licence permitting liquor to be sold while the premises are being operated as a café bar between the hours of 7.00 am and 3.00 am every day. In addition to the café business, they cater for private functions such as birthdays and weddings on an ad hoc basis, operating within the constraints of the on-licence.

[18] Mr Hardgrave acknowledged that the principal concern of the objectors was noise. He said that he and his wife were trying to run the premises in a professional manner, and that they had taken a number of measures to address possible noise complaints. He emphasised that there had been no noise complaints since July 2006 and that he and his staff were very vigilant about ensuring there was no disruption to neighbours. He said that in general noise was better controlled than it had been in the past and part of the reason for this was that the dynamics of the building had changed with the demolition of the adjacent property. Previously, sound had ricocheted off the concrete wall on the side of the building. Now that the space was open and grassed, the sound dissipated. Mr Hardgrave said that they have a noise meter so are able to measure noise levels themselves and ensure that noise is not excessive.

[19] Mr Hardgrave said that since 26 August 2006 there had been 21 private functions held at “Café E.S.P. Resso” and there were two more scheduled in April and May. He said that no noise complaints had been made during that time and he had had no contact with the Sunflower Lodge indicating that the management there had any issues about noise. He said that he and his staff have monitored the sound levels in the alley and are satisfied that noise in the alley is not coming from “Café E.S.P. Resso”. He said that after 11.00 pm, they close the doors to the open deck. There is no intention to have live bands.

[20] Consistent with the terms of the District Plan, all patrons are off the premises by 3.00 am. As noted above, patrons are no longer able to use the door into the alley to leave the building. Mr Hardgrave emphasised that he was doing all that was necessary to comply with the District Plan and Council regulations. He apologised for the past instances where noise levels had clearly been too high. He said the renewal process had been a salutary lesson for him and he did not wish to have to appear before the Authority for any reason again.

The Authority’s Decision and Reasons

[21] In any application for the renewal of an on-licence we are required, pursuant to s.22 of the Act, to have regard to the following matters:

• (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.
  

[22] We note that the reporting agencies have made no adverse reports challenging the suitability of the applicants. While it is acknowledged that noise complaints were found to be justified in the past, we are satisfied that the applicants have taken positive steps to eliminate the escape of noise from the premises. We are also satisfied that they are aware that their continued operation on the present site requires that they co-exist with their close neighbours. This means that they are bound to ensure that they control the music and people noise coming from the premises.

[23] As we have often indicated, it is for the applicants to establish their suitability to continue holding the licence. As Panckhurst J said in Page v Police (unreported HC V Christchurch AP 84/98 24 July 1998:

“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.”

[24] In this case, the challenge for the applicants is to operate a business that is located in close proximity to the backpackers accommodation and other central city apartments in compliance with resource management requirements in the District Plan. As we said in Paihia Saltwater (2001) Limited PH 391/2001:

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.

[25] Having heard from the applicants and the compliance agencies, we are more than satisfied that the applicants have successfully reduced the noise levels such that since 21 January 2006 there has been only one complaint about excessive noise and that was found not to be substantiated. We acknowledge that in large part this has been achieved by positive steps taken by the applicants to reduce noise on the premises, as well as by the demolition of the adjacent building.

[26] The strongest evidence in support of the application was the list of 21 private functions held during the previous six months. This was in addition to the normal business. There had been no issue about any one of the functions.

[27] There is a lot at stake if the applicants are the subject of noise complaints again. They are on notice that their licence may be in jeopardy if they do not maintain their vigilance in monitoring the escape of noise from the premises. However, we are satisfied that the message has got through and there is no justification for reducing the trading hours.

[28] In all the circumstances and for the reasons given, we are satisfied as to the matters to which we must have regard as set out in s.22 of the Act. We confirm renewal of the licence on the existing terms and conditions until 18 February 2009, as set out in decision number LLA 405/2006 (supra).

DATED at WELLINGTON this day of 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

Café E.S.PResso.doc