WD Holdings The Realm Limited, re [2007] NZLLA 60 (12 February 2007)

Last Updated: 18 February 2010

Decision No. PH 60/2007

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by WD HOLDINGS THE REALM LIMITED pursuant to s.
18 of the Act for renewal of an on-
licence in respect of premises

situated at 5 Moxham Avenue, Hataitai, Wellington, known as “The Realm Bistro and Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms P A Ballard

HEARING at WELLINGTON on 16 January 2007
Supplementary submissions received on 23 January 2007

APPEARANCES

Mr H P Kynaston and Ms A J Griffin – for applicant
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist
Sergeant A P Kowalcsyk – NZ Police – to assist

Objectors
Ms J J Cozens
Mr C J Darroch
Mr T Crayford
Ms J Russell
Ms J Naran

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by WD Holdings The Realm Limited (hereafter called the company), for the renewal of its on-licence in respect of premises situated in the Wellington suburb of Hataitai, and known as “The Realm Bistro & Bar”. The subject premises were originally licensed as a neighbourhood tavern in 1988. An on-licence was issued to a company named Hatters Restaurant (1988) Limited on 26 October 1993 following a public hearing attended by a number of residential objectors. See Hatters Restaurant (1988) Limited LLA 2042-2043/93. This company changed its name to The Realm Limited in 1994.

[2] The shares in The Realm Limited were sold to Trinity Group Holdings Limited (hereafter called TGH) in June 2005. Notice of the change of shareholding and directors was given to the Authority as required by s.225 of the Act. No opposition to the company’s change of ownership was received either from the Police or the District Licensing Agency Inspector. Subsequently, the company again changed its name to WD Holdings The Realm Limited.

[3] The on-licence fell due for renewal on 26 October 2006. No changes were sought to the conditions of the licence. The company held an off-licence for the premises but did not seek a renewal as it holds an off-licence for premises across the road. The days and hours of trading have not changed since October 1993 although there has been an increase in the licensed area by the inclusion of part of the pavement on Moxham Avenue. The permission document issued by the Council allows for four tables and 16 chairs. The current trading hours are:

Monday to Saturday 7.00 am to 3.00 am the following day

Sunday 11.00 am to 1.00 am the following day

[4] As stated above, the company acquired the business by way of a transfer of shares. Accordingly, the renewal application is the first to be dealt with since the business changed hands. Public notification of the renewal application attracted three objections. The first objection was in the form of a petition and contained 64 signatures. Although some of the signatories have since withdrawn their opposition, and although a few of them reside sufficiently far away from the premises not to be personally affected, the petition and the accompanying letter were both well researched and meticulously presented. It is clear that there is a degree of public antipathy to the continuation of the tavern in its present form.

[5] The major concerns of the objectors were excessive noise and the length of the trading hours. There were additional references to unacceptable patron behaviour, litter, vandalism, and late night traffic disturbance. The objectors saw the trading hours as the root cause of the problems associated with the running of the business. They sought to have the hours reduced given the high-density residential nature of the locality. A letter was received from the Hataitai Residents’ Association (Inc.). It was explained that although a motion had been carried that the Association support the objectors, the Association was unable to follow the motion to the letter, as not all residents had been canvassed.

[6] There was no opposition to the renewal from the District Licensing Agency Inspector, or the Police, or the Medical Officer of Health.

The Application

[7] Mr J J Deane is the founder and Managing Director of TGH and is one of the directors of the applicant company. He was out of the country when the hearing took place and the objectors graciously allowed his brief of evidence to be introduced without exercising the opportunity to question him. On the other hand his brief was a reasonably neutral and objective document. It showed that TGH owns and operates 14 licensed outlets throughout the North Island either as the sole shareholder or jointly with its General Managers. Mr Deane is responsible for setting the standards for TGH’s host responsibility policies as well as its training programmes. He stated that prior to purchasing “The Realm Bistro and Bar” he had been made aware that there had been noise issues. He contacted the Council and obtained a history of the complaints.

[8] When it became apparent that the escape of noise might affect the renewal of the licence, Mr Deane arranged to contact a local City Councillor. He also attended a meeting of the Hataitai Residents Association along with Mr M Pedersen the tavern’s general manager. Mr Deane offered to meet with any resident who had issues with the way the business was operated but the offer has not been taken up.

[9] Mr Deane gave evidence about an incident involving excessive noise on Saturday 2 December 2006. Having received a report on the incident he arranged for a formal disciplinary hearing to take place with the duty manager. He confirmed that the outside speakers were to be disconnected until a noise limiter could be connected to the system by a professional sound technician. In addition Mr Deane advised that noise consultants were contacted. There was a one-page letter from Malcolm Hunt Associates dated 10 January last. The letter stated that activities associated with the sale of liquor could be carried out in full compliance with stated District Plan noise limits and without causing a neighbourhood noise problem. Mr Deane confirmed that the company’s noise management policy had been amended to prevent crowds congregating on the deck after 10.00 pm. He stated “They can only use this area to smoke.” However, it became clear that the company’s intention is also to allow the patrons to drink on the deck.

[10] Mr Deane stated in his brief that he had written to all the persons who had signed the petition inviting them to a meeting on 4 January 2007 to discuss their concerns. It seems that the objectors may have formulated a policy of declining contact with the applicant company prior to the public hearing. At any event only one couple attended the meeting. According to his fellow director, it was explained that the company had adopted the following policies:

• (a) Groups of customers are asked to come inside after 10.00 pm and the music is either turned off or automatically governed at 10.00 pm;
  
• (b) Only smokers are allowed on the deck after 10.00 pm;
  
• (c) Bands at the venue had been stopped; and
  

(d) The turnaround of taxis was managed along with the departure of customers. (Note – the evidence of Mr M E D Pedersen confirmed that the company directs patrons to the front of the premises to be picked up and not to the car park which is in the same area as the deck)

[11] We heard from Mr R C A Goulden who is a Wellington City Councillor representing the Eastern Ward. He described his experience of “The Realm Bistro and Bar” and his interactions with the Hataitai community. He offered to facilitate a meeting between the objectors and the management of the premises but this was unsuccessful. His overriding impression from the enquiries he had made, and his own observations, was that the business was well-supported by the community and was responsibly managed.

[12] Mr J T Smith is the Finance Director and Operations Support Manager of TGH and one of the company’s directors. Part of his role is to implement procedures, processes, and governance to follow best practice in running the business. He attends weekly site meetings. He submitted that as part of its mission, TGH is proactive in compliance and developing good relationships. To this end the owner-managers (Mr M Pedersen and Ms S Fuller) had written to local residents introducing themselves as soon as the new business had commenced. A second letter was delivered in September 2006. This stated inter alia:

“Please remember – we are embedded in the community and along with everybody’s support and our genuine interest, we welcome any questions; feed back or queries about The Realm, do not hesitate to contact Matt directly.”

[13] Mr Smith advised that TGH’s policy was to encourage its owner-managers to enter into share purchase agreements subject to achieving strict criteria in key performance areas. In the case of Mr Pedersen and Ms Fuller the assessment period had been extended to enable certain targets to be met. Mr Smith contended that as part of its proactive stance the company had a noise management plan. This was instituted when the business was taken over and has been updated. The two plans produced were both dated in December 2006. Mr Smith argued that these plans had had a negative impact on the profitability of the business because of the decision not to have live bands on the site especially on Friday or Saturday night.
[14] Mr Smith submitted that the business was required to compete not only with other suburban bars in Kilbirnie with 3.00 am licences, but also with bars in the centre of Wellington, many of which stayed open until 7.00 am. He suggested that the impact of low priced beer and wine from supermarkets meant that many people go out to socialise later having already consumed liquor. It was his opinion that the key issue was not so much the trading hours as the approach being taken by the company to ensure that it takes its responsibility seriously and is a good neighbour.
[15] Mr M E D Pedersen gave evidence as the general manager of the tavern. He has been working for TGH for six years. He stated that he had had a personal investment in the business from the time it was purchased. He said that he did not want to have a financial interest in a business that he was not proud of. He produced a consolidated list of the various noise complaints over the previous three years. This showed that between August 2003 and June 2005 (when the company took over) there were 28 noise complaints. Between June 2005 and December 2006 there had been a further 19 complaints. On many occasions the noise was not considered to be excessive although two excessive noise directions had been issued to the company on 24 March 2006 and 28 May 2006. Both notices were for loud music.

[16] Mr Pedersen explained that the first incident had resulted from a lack of staff discipline and the staff member had been spoken to, and was no longer employed by the company, partly because of the incident. The second notice resulted from the use of a live band. Mr Pedersen accepted that the company had made an error of judgement as the band was amplified too loudly. This incident resulted in the decision not to have live bands either in the front or the back of the premises.

[17] Mr Pedersen also produced a time line showing that the company has been regularly involved with noise issues since October 2005, and had reacted in a responsible manner by following up each complaint and making changes where necessary. There were no less than 40 entries (some of which were positive) since the business had been taken over. He confirmed that in December 2005 the sound system was re-zoned to enable individual speakers in separate areas to be turned down. He confirmed that the mezzanine floor zone system is shut off and the skylights are closed at 10.00 pm. He submitted that in this way the company is able to and does reduce the noise in the back part of the bar.

[18] As far as live entertainment is concerned the original decision was to stop having bands in the back area. After an incident in May 2006, another decision was made not to have live entertainment in the front area at night-time. Mr Pedersen confirmed that sometimes he used ‘unamplified’ soloists in the front bar, and occasionally there are gigs on the deck on Sunday afternoons. There had been complaints about the use of a microphone, and as a consequence the company had decided to finish its quiz and comedy nights at 10.00 pm, and ensure that these events were not amplified to the outside area. Furthermore, bottles are now not emptied outside after 10.00 pm.

[19] Mr Pedersen stated that the company employs a security company to prevent patrons leaving with bottles. The security people patrol the outside area and part of their duties includes the removal of bottles and other rubbish from the surrounding area. This was confirmed by a letter from D-Fuse Security Solutions Limited.

[20] Mr Pedersen submitted that part of the problem related to the number of groups who visited the bakery across the road. This business is open 24 hours a day on Fridays and Saturdays. The bakery is said to be very popular with young people returning from the city. The company employed a student to observe the bakery on two Saturdays and a Friday from 11.00 pm to about 4.00 am the following day. It appeared that approximately a quarter of the groups who visited the bakery were from “The Realm Bistro and Bar”. Mr Pedersen suggested that on the basis of the survey, the wider community problems such as shouting obscenities, slamming doors, vandalism and so on, could not be solely laid at the door of the patrons from the bar.

[21] Finally, Mr Pedersen produced a retaliatory petition signed by a significant number of persons who were encouraged to do so if they believed that “The Realm Bistro and Bar” was a complete benefit to the Hataitai community, and did not want to see the trading hours decreased.

[22] Mr Deane referred to an incident on Saturday 2 December 2006. Ms R M White was on duty at the time. Time prevented her brief from being read at the hearing. Once again we are grateful to the objectors for allowing the document to be accepted. Because there were only a few customers that night, she allowed two staff members to leave. However, there was a later influx of patrons many of whom congregated outside the premises. As a consequence the noise levels became too high. At 10.15 pm Ms White made the decision to turn off the outside speakers. At some stage she ushered a large group inside the premises. She was unaware that the noise levels were being monitored. She confirmed that since the incident, the outside deck has been closed off to drinkers at 10.00 pm, and the outside speakers had been disconnected.

[23] Mr H Kynaston represented the company. He stressed that the current trading hours had been in place for 15 years. He referred to the Inspector’s report in which it was stated that the current hours of operation had been ‘earned’ by implementing and maintaining responsible management practices. Mr Kynaston argued that of the 20 noise complaints since TGH had taken over, 12 had occurred before midnight. He confirmed that the speakers on the deck had been disconnected but would be reconnected once the company was certain that the volume could be controlled. He noted that a number of objectors had purchased their properties in the knowledge that there was a tavern in the suburb.

The District Licensing Agency Inspector

[24] Because of the public concerns about the issue of noise, the Inspector called Mr M Borich, a Compliance Officer with the Planning and Urban Design Directorate of the Wellington City Council. He has been specialising in noise control issues for eight years. He gave evidence of the history of noise problems from these premises since 2002. At that time an acoustic consultant had recommended replacement of the large skylights. However, even though this work was carried out, the complaints continued to be received.

[25] Mr Borich has visited the premises and taken noise measurements on nine occasions between June 2003 and August 2005. Visits were on Friday and Saturday nights between 11.00 pm and 12.30 am. On each occasion the noise levels were within the permitted District Plan levels. After the issue of the excessive noise notice in May 2006 he told Mr Pedersen that “The Realm Bistro and Bar” was not an appropriate venue for a live rock band, and he believes that live bands have not been invited since.

[26] Following a noise complaint on 17 June 2006 Mr Borich visited 6 William Street which backs on to the rear of the premises. He noted that the noise was subjectively excessive. However, before a full 10-minute assessment period was possible, the music was turned off to enable a rugby game to be broadcast. He noted that the problem was the outdoor speakers on the deck and wrote to the manager telling him to control the outdoor speakers.

[27] On Saturday 2 December 2006 Mr Borich took further measurements from 12 William Street which is also at the back of the premises. The noise from people on the deck and laughter and loud music was measured at 62 dBA (L10), more than four times as loud as permitted in the District Plan after 10.00 pm. The music was turned off at 10.35 pm, and Mr Borich then measured the people noise. Once again the noise level was 52 dBA (L10), more than twice as loud as that permitted by the District Plan. He duly wrote to the licensee threatening an abatement notice under the Resource Management Act. He wrote:

“Please note as the neighbours are directly adjacent to the tavern in my view it is not possible to operate the deck area as a garden bar after 10.00 pm and comply with permitted noise levels.”

[28] It was Mr Borich’s view that the general noise can be contained by good management. On the other hand he submitted that if bands play on the premises or windows and/or doors are left open then there will be excessive noise. He opined that the recent problems were caused by allowing people on the deck to drink and talk late at night. He recommended a 10.00 pm closing of the deck as a garden bar.

The Police

[29] In a closing submission, Sergeant A P Kowalcsyk said that “The Realm Bistro and Bar” had a low Police rating in terms of anti-social behaviour indicating good management practices. It was his view that one of the main concerns was the migration of drinkers from nearby sporting clubs. He thought it was unfair to target the tavern for some of the activity in the area, given the large number of pedestrians returning from the City through the bus tunnel, and the attraction of the bakery as a late night meeting place. Because his comments were made as submissions and not given from the witness box, the objectors were unable to question the Sergeant but it seemed to us that his comments were reasonably objective at any event.

The Objectors

[30] Ms J Cozens was the principal spokesperson for the objectors and a number of people who had signed the petition. It appears that there may have been a misunderstanding as to the objectors’ rights to ask questions and give evidence personally. In her original objection she and Mr C Darroch referred to the Wellington City Council Liquor Licensing Policy issued in March 2003. Section 6.2.2 of the Policy sets out the recommended hours of operation for on-licences in suburban and rural areas. The hours are as follows:

Sunday to Thursday 7.00 am to 11.00 pm

Friday and Saturday 7.00 am to midnight

[31] The policy states:

“In suburban areas the amenity values of the community have a higher priority than in the central area. The presumption is that the predominantly residential areas are where most people sleep and enjoy their leisure time, and more peaceful, quieter surroundings are expected by the community. Therefore a reasonable degree of protection for this amenity should be in place. Adverse impacts include disruption from loud patrons leaving licensed premises, starting cars and noise from venue activities (such as bands) ... Subject to exceptional circumstances being established no new licences will be recommended for premises to operate past the above limits.”

[32] The objectors argued that although the policy is not applied retrospectively, the change in shareholding and directors should have triggered the Agency into applying its own recommendations. In summary the objection referred to the loud music from the tavern disrupting the sleep of residents in adjacent houses into the early hours of the morning. It was submitted that extended hours allow a longer (and later) time for people to consume liquor, which in turn affects the behaviour of people going to and from the tavern late at night.

[33] When she gave evidence Ms Cozens referred to the history of promises made and ignored. She stated that despite remedial work to the building, noise problems continued in the form of bass music and from the outside deck. She argued that the social climate which had originally allowed for 3.00 am closing, had changed.

[34] Ms Cozens contended that the area around the tavern was developing an unsavoury reputation with rubbish and bottles/cans lining the streets, graffiti, thefts, and vandalism. However, she acknowledged that the level of street disruption appeared to have reduced over the last few months. She supported her evidence with photographs. She explained that there had been no discussion with Mr Deane because he was adamant that there would be no reduction in the trading hours. Therefore it was the objectors’ view that there seemed to be little point in meeting.

[35] Ms Cozens proceeded to detail a number of key incidents which had affected each objector and presented two letters from Mr C Darroch and Ms A Moore. However, the evidence suffered from the fact that (a) no details were given as to when each incident occurred and (b) in many cases there was no actual link between the incident and the activities of “The Realm Bistro and Bar”. Mr Darroch was present but was content to have his letter submitted. He complained of loss of sleep caused by the bass sound of the late night music despite the fact that he has moved bedrooms. He also referred to the noise caused by patrons leaving the premises.

Submissions received after the Hearing

[36] When he gave evidence, Mr Pedersen was asked whether he would accept a reduction in the trading hours for the deck as recommended by the Compliance Officer. Somewhat surprisingly he declined to agree to any reduction in the company’s trading hours. He explained that despite the evidence given, it was the company’s intention to allow consumption of liquor on the deck after 10.00 pm. The line of questioning was a concern for the company’s counsel who filed a supplementary submission after the hearing had concluded. Copies of the submission were sent to the objectors who replied.

[37] Mr Kynaston wanted to make the company’s position clear. He said that after 10.00 pm the company intended to make the deck available for smokers who could continue drinking. He stated that the company would monitor the use of the deck to ensure that it is used only for smoking after 10.00 pm and that it was not used by large groups or as a general garden bar. He submitted that it would be inefficient, onerous and not customer friendly to prohibit smokers from taking their drinks onto the deck with them. It was Mr Pedersen’s view that the consumption of liquor in that area could be managed so as not to cause any noise issues. The balance of submissions from both Mr Kynaston and the objectors was a re-run of what had already been said.

The Authority’s Decision and Reasons

[38] In Excel Promotions Limited v Police [1998] NZAR 151 Heron J had this to say:

“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.”

[39] 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.

[40] It is up to the company to establish its suitability to continue to hold the licence in its present form. The company carries the onus of showing it has conducted the sale of liquor without problems arising such as intoxicated patrons, and that the conditions should not be altered. These issues are particularly significant on the first renewal of the licence following a change of shareholding.

[41] 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.”

[42] We accept that the company through its shareholder TGH has made an excellent impression in the hospitality industry in a relatively short period of time. The company’s initiatives in host responsibility and its yellow and red card systems are commendable. Whether Mr Pedersen is capable of assuming the same level of responsibility is less certain. Turning the renewal of a licence into a popularity contest does little to encourage confidence in the suitability of the manager/licensee. What we are considering is a tavern right in the middle of a residential area. It is one thing to be sensitive to the issue of noise. It is quite another to be proactive and actually make the changes necessary to fix the problem. To our disappointment we gained the clear impression that the company was most anxious not to be regulated in any way but to retain the right to run its own business in the way it thought best.

[43] The noise management plan was last updated on 14 December 2006, a month before the hearing. In our view there are a number of generalities in the plan and it is incapable of being enforced to the letter. For example, reference is made to the fact that outside speakers are to be turned off at 10.00 pm and the mezzanine speakers are turned off “a little later”. The noise management plan states that from 10.00 pm the outside deck cannot be used as a general area but is only available for smoking. In view of the company’s decision to allow the smokers to take their drinks outside it would be almost impossible for members of staff or security to control the patrons and prevent the sort of noise measured by Mr Borich in December last year. Although the plan calls for no live bands, there will be exceptions according to the evidence. In our view firm undertakings are required.

[44] The objectors are right when they argue that the Wellington City Liquor Licensing Policy has not received sufficient consideration. When the hours were approved 13 years ago taverns were operated in quite a different manner. In 1993 the emphasis was on socialising and drinking. With many modern taverns patrons are encouraged to attend and dance to the music dominated by a bass sound. Entertainment such as karaoke and quiz nights is provided and loudspeakers are used. In summary the noise exuded from a modern day tavern has undergone a significant change.

[45] In addition to the noise factor, smokers have now been banned from licensed premises. In some cases licensees have been able to persuade the Agencies to extend the definition of the premises to enable patrons to smoke and drink outside or in a designated area. There have been consequences to these changes. Licensees have on some occasions acquired an extra drinking space such as a footpath or a deck. In our experience, complaints about patron behaviour and patron noise have increased since the amendment to the Smoke-free Environments Act 1990 on 10 December 2004.

[46] The question is how these two issues impact on our decision. We deal with the Wellington City’s Policy first. Liquor licensing policies are a combination of community expectations about how alcohol is made available to consumers, and legislative requirements governing generally acceptable norms of behaviour. The suggested hours for a tavern such as “The Realm Bistro and Bar” located in the middle of a residential area are substantially different to the hours currently enjoyed by the company. The company has to come to terms with the fact that it will face continual pressure to bring the trading hours into line with community expectations. We accept that on the issue of fairness any reduction would be gradual. If the company was able to show an exemplary management focus with no incidents, the position might be different.

[47] Currently there are three places where patrons can drink and smoke. There is a specially designated area at the front of the building, as well as the licensed footpath area, and there is the deck. It seems to us that the current hours for using the outside footpath are very generous. As there was no direct evidence on the matter we will not interfere but the issue needs consideration. In this particular case we do not accept that it is necessary for patrons to have to smoke and drink on the deck particularly as there are alternative areas available for them. We do not accept that it is possible for the company to monitor the crowds on the deck, and ensure that when there are too many people, they are encouraged to go inside. We note that the company has disconnected the outside speakers but will connect them once a limiter is installed.

[48] The fact that taxis are now sent round the front of the building away from the parking space by the deck, shows that this particular area has a real potential for neighbourhood disruption. Finally, we note that when the sound was actually monitored it was twice as loud as permitted District Plan noise levels. We do not accept that this was a one-off occurrence. The noise was simply people drinking and smoking on the back deck. No neighbour should ever have to put up with such disruption particularly to 3.00 am in the morning. We were surprised to discover that the company intends to reconnect the outside speakers. Mr M Borich recommended that the use of the deck as a garden bar be restricted to 10.00 pm. We have no confidence that the company could bring this into effect without a change to the trading hours, and that is why we propose to make a change to the trading hours.
[49] There was other evidence of noise complaints but we would require much more specific evidence before the objectors would reach the factual threshold necessary for us to make any other review of the conditions of the on-licence. In particular the times of the complaints do not support a reduction. The majority of the noise complaints made since the company took over the business were recorded before midnight. None were after 1.30 in the morning. We have also taken into account such matters as the absence of specific concerns expressed by the Police and/or the District Licensing Agency Inspector about the company’s ability to manage the premises. There was evidence of patron misbehaviour but it was non-specific and there was no corresponding evidence of slack management practices. The link between street disorder and the operation of the tavern was based on inference only.

[50] In our view, it is appropriate that the on-licence be renewed. If noise complaints continue to be made, we would encourage the District Licensing Agency as well as the Council to have the business monitored with a view to enforcement proceedings for the variation of the licence. We intend to review the licence again in twelve months at any event. We believe that it is only since the renewal application that there has been any serious activity to reduce or minimise the impact of the tavern on the neighbours. All parties should have the opportunity to see how the new systems have worked. We encourage the objectors to communicate their concerns to the company to see if there can be common ground. Mr Deane stated that the company is “sincere and tenacious” in working towards resolving issues with the neighbours. That resolve needs to be tested and the parties need the opportunity to reflect on this decision.

[51] In considering this application for renewal 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.

[52] It follows that 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 and nuisance issues. 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).”

[53] For the reasons given we order that the on-licence issued to WD Holdings The Realm Limited is renewed for 18 months to 26 March 2008. The trading hours will be:

In respect of the rear deck:

Monday to Saturday 7.00 am to 10.00 pm

Sunday 11.00 am to 10.00 pm

In respect of the balance of the premises:

Monday to Saturday 7.00 am to 3.00 am the following day

Sunday 11.00 am to 1.00 am the following day

DATED at WELLINGTON this 12th day of February 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

The Realm.doc