Rosehill Properties Limited, re [2008] NZLLA 1422 (6 October 2008)

New Zealand Liquor Licensing Authority

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Rosehill Properties Limited, re [2008] NZLLA 1422 (6 October 2008)

Last Updated: 9 February 2010

Decision No. PH 1422/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ROSEHILL PROPERTIES LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 71 Frederick Street, Dunedin, known as “Bowling Green Hotel”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Dr J Horn

HEARING at DUNEDIN on 23 September 2008

APPEARANCES

Mr J A Farrow – for the applicant

Mr A S Mole – Dunedin District Licensing Agency Inspector – to assist

Sergeant W D Pitcaithly – NZ Police – to assist
Dr J D Holmes – Medical Officer of Health – in opposition

Objectors

Mrs D R McKay
Mr P R Walker – representing Cumberland College
Mr D M Richardson – representing University of Otago, Hayward College, and Division of Health Sciences, University of Otago

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an application by Rosehill Properties Limited (hereafter called "the company") for the renewal of an on-licence in respect of premises situated in Frederick Street in Dunedin. Before considering the application, it is necessary briefly to review the history of the company’s recent appearances before us.

[2] The first hearing took place on 27 October 2005, and the decision can be found under LLA PH 776-778/2005. This was an enforcement application as well as an application for the renewal of the licence. Suspension of the licence was sought on the grounds that the company had promoted excessive consumption of alcohol, and allowed intoxication on the premises. The opposition to the renewal was based on the same allegations as appeared in the enforcement application. We found that the allegations had been established. However we adjourned the applications for six months, to give the company the opportunity to cease the promotions, and enforce its new security policy. The on-licence was duly renewed.

[3] The second hearing took place on 24 October 2006, and the decision can be found under LLA PH 956-957/2006. The case involved two suspension applications brought by the Police against the company and a manager. The allegation related to an intoxicated patron. We were asked to draw an inference that the person must have been intoxicated when he was in the premises. There was an unaccounted for period of time of between 40 and 60 minutes, and consequently, the application was declined.

[4] The third hearing took place on 27 April 2007, and the decision can be found under LLA PH 442/2007. This was an application for the suspension or cancellation of the licence. The ground was that the licensee’s conduct called into question its suitability. The allegations referred to a promotion called a ‘Licence to Burn’ party. It is of interest that at the hearing, Mr D M Richardson, the Director of Social Services for the University of Otago, was called to give evidence. In the event, the company’s counsel accepted the contents of his brief. We found that the allegations had been established and the licence was suspended for three days.

[5] The fourth hearing took place on 21 November 2007, and the decision can be found under LLA PH 1311-1313/2007. This was an application for the suspension or cancellation of the licence, as well as the suspension of a manager’s certificate. The allegations related to patron intoxication. We found that the allegations had been established. The licence was suspended for two days and a manager’s certificate was also suspended.

[6] The current licence fell due for renewal on 19 June 2008. No change to the conditions was sought. The tavern has hours to trade between 11.00 am and 3.00 am Monday to Saturday, and between 11.00 am and 10.00 pm on Sunday. The business has three defined areas downstairs, being a gaming machine room, a dance floor and a bar. In addition there is a functions room on the first floor.

[7] The “Bowling Green Hotel” is one of the oldest established student bars in the University precinct of North Dunedin, and markets itself as a ‘student pub’. The Dunedin City Hospital is located opposite the venue on the southern side of Frederick Street, approximately 20 metres away. This has multiple storeys and overlooks the premises' roof. Diagonally across the intersection of Frederick Street and Cumberland Street Central, to the south-east, are the University of Otago’s multiple Hayward halls of residence. These are located approximately 30 metres away. The Hunter Centre, which is a teaching and conference facility, owned by the University of Otago, is 25 metres away to the north-west. It has first floor windows that overlook the company’s rear car park area.

[8] The Police did not oppose the renewal application. The Medical Officer of Health opposed the renewal on the grounds of noise and disturbance from the premises, as well as misbehaviour by the patrons. Reference was made to the location of the premises close to the Dunedin Hospital and university residences. The District Licensing Agency Inspector also referred to noise issues affecting sensitive premises such as the hospital and university halls of residence. Because there were six public objections to the renewal he felt unable to support it.

[9] Public notification attracted six letters of objection. Through its counsel, the company challenged the status of some of the objectors. All objections were based on issues of the company’s suitability and its current trading hours. The general theme related to noise and unacceptable patron behaviour associated with the premises. It was alleged that the noise had become intolerable. The objectors were Cumberland College and Hayward College, both university residential halls, as well as the Division of Health Sciences of the University of Otago, the Otago District Health Board, the University of Otago, and Mr and Mrs R McKay. Because of the considerable level of disquiet about the management of the premises, the application was set down for a public hearing.

The Application

[10] Mr Mark Paul Deason is the general manager of the premises. He confirmed that his family has owned and operated the business for approximately eleven years. He maintained that the company was committed to minimising adverse effects from the company’s activities. He claimed that he had responded positively and promptly to previous complaints, and had established systems to ensure compliance with the relevant legislation.

[11] Mr Deason stated that on receipt of the letter from the Otago District Health Board, he implemented a policy that the Frederick Street dance floor door was to be closed whenever the DJ commenced playing music. He referred to the comments made by the Board’s Chief Operating Officer, that the Board appreciated the company’s response to requests to reduce the music volume. He said that he became aware of an article in the local newspaper on 8 May last, concerning loss of sleep by patients at the hospital. He contacted his sound contractors and they recommended he consult with an acoustic specialist.

[12] Mr Deason received the first draft of the report on 18 September 2008 a few days before the hearing. He acknowledged that according to the report the company was non-compliant with the Dunedin City’s noise limits. He indicated that he intended to implement all the recommendations in the report with the exception of the installation of a lobby within the bar. He said that there had been a lobby in the past, but this had created blind spots, and made it difficult to monitor patrons. Although he expressed a commitment to the management of patrons outside the premises in the smoking area, Mr Deason seemed reluctant to enforce the suggestion that the area in question should no longer be available for the consumption of liquor.

[13] Mr Deason took issue with the general tenor of the letters in opposition. He noted that only 12 of the official noise complaints received since August 2005 required the Noise Control Officer to take action. He contended that in the past seventeen and a half months there had only been six complaints. He argued that five of these might well have been stimulated by the newspaper article referred to above. He also submitted that the action of the Noise Control Officers were subjective as they did not carry noise monitoring devices. He acknowledged that it was possible that his offer for people to contact him personally could effectively bypass the Council’s record, but said that this was not his intention.

[14] Mr Deason argued that the company had been active in addressing noise complaints and he was in regular consultation with the sound contractors to limit the decibel output. He did not believe that the noise levels had increased since 2004. He said he genuinely believed that the objections to the renewal had been stimulated by the company’s publicity promotions.

[15] Mr Deason said he was surprised to receive the letter of opposition from Cumberland College as he had made previous contact with the Head of College and believed that they had ironed out any differences. With regard to the objections generally, Mr Deason disputed any suggestion that there had been any further illegal promotions since 2007. He argued that any allegations that patrons were intoxicated when they left the premises, were wrong. Mr Deason said that such allegations should be balanced against the fact that the Police had not opposed the renewal application.

[16] Mr Deason contended that many students now drink to the point of intoxication at their residences before going out. He pointed to the number of other licensed premises in the locality such as the “Captain Cook Tavern”, the “Monkey Bar”, the “South Bar”, “Gardens” and the “Oriental”. In terms of patron misbehaviour, he argued that the people being observed, could have been drinking at any of the above establishments. He argued that much of the noise was from traffic and pedestrians who had no connection with the tavern.

[17] Mr Deason pointed out that the “Bowling Green Hotel” operated within the university campus some distance from the majority of student accommodation. He noted that the company was able to sell liquor by virtue of its existing use rights, and that no actions had been taken against the company that it had breached those rights. However, he acknowledged that the hospital does experience noise from time to time from the “Bowling Green Hotel”. He noted that the specialist acoustic report concentrated on this aspect.

[18] Mr Deason produced an affidavit from a close neighbour. She said that the noise in her area did not particularly bother her. She stated that she found the Deasons co-operative and easy to deal with. She most of the noise came from people on the street rather than from the tavern. She though that over the years there was less and less noise coming from the tavern although she thought that the major renovations to a toilet block provided a major sound buffer.

[19] Mr Sean Martin Flaherty is a specialist in environmental acoustics. He has been a consultant with Golder Associates (NZ) Limited in Christchurch for over two years. He confirmed that the District Plan states that the following noise levels measured at the boundary or within any other property are not to be exceeded:

55 dB L_A10 between 7am and 9pm from Monday to Sunday;

40 dB L_A10 between 9pm and 7am from Monday to Saturday and all day Sunday and Public holidays;

40 dB L_Amax between 9pm and 7am.

[20] Mr Flaherty undertook noise monitoring on the night of Saturday 30 August 2008 between 11.00 pm and 2.40 am the following day. Approximately 1177 patrons entered the premises after 10.00 pm that night. He advised that noise levels demonstrate non-compliance with the District Plan’s noise limits. He predicted that based on the noise within the venue, noise levels of up to 55-60 dB L_A10 were likely at the northern façade of the hospital with levels up to 50 dB L_A10 at the northern and western facades of the Hayward halls of residence. Further, he predicted noise levels of 45-50 dB L_A10 at the Hunter Centre building to the north-west, with the higher level being largely attributable to the rear entry door being open for long periods.

[21] Mr Flaherty considered that the level of noise generated by the tavern’s patrons queuing to gain entry, and standing outside within the wire/fenced smoking area was generally comparable to the level of noise generated by the band. There were times when the outside noise was significantly greater. He measured noise levels of up to 70 dB(A) at the north-western boundary indicating that allowable noise levels were being exceeded. Mr Flaherty pointed out that any evaluation of the effects of non-compliant noise from the tavern, would have to take into account the noisy environment and the contribution to the general noise level made by other off-site sources.

[22] Mr Flaherty recommended the following mitigating factors to reduce the noise levels to compliant levels:

• [a] Upgrading existing roofing/ceiling above the dance floor;
  
• [b] Relocation of the dance floor low frequency loudspeaker units;
  
• [c] Upgrading the dance floor entrance way/doors:
  
• [d] Providing attenuators to the ventilation outlets;
  
• [e] Providing a lobby within the rear bar;
  
• [f] Upgrading or modifying the rear north-eastern doors of the rear bar;
  
• [g] Upgrading the temporary wire fencing to the west of the smoking area;
  
• [h] Management of patrons in outdoor areas.
  

[23] With regard to the latter point, Mr Flaherty suggested that if smokers were not permitted to take their drinks outside they would tend to remain outside for shorter periods. With regard to the dance floor access, Mr Flaherty suggested that there be a lobby to act as an effective air-lock between the dance floor and the street. He advised that if this was not practicable, then either the existing door should be replaced or the existing sealing should be replaced. He thought a lobby between the rear entry doors and the rear bar would also act as an air-lock and reduce the noise levels from the rear bar.

[24] Mr J A Farrow represented the company. He challenged the right of Cumberland College, Division of Health Sciences and the University of Otago to appear. He suggested that they did not have a greater interest in the proceedings than the public generally because they were not sufficiently close to the premises to be affected. He argued that these objectors would have to show some correlated advantage or disadvantage as a result of the outcome of the application. He was going to advance the same argument with respect to Mrs D R McKay but withdrew the submission when she indicated the probability of returning to the hospital in the foreseeable future. He also indicated that we should have limited regard to Cumberland College’s objection.

[25] Mr Farrow argued that the criteria in s.22 of the Act had been met and in terms of s.4 of the Act it would be reasonable to renew the licence on its present terms. Mr Farrow argued that issues about suitability should be balanced against the fact that the suitability of the licensee had not been raised by the reporting agencies. He referred to comments about the company's previous marketing campaigns and pointed out that the company had been sanctioned for such behaviour. In his view the issue was whether the company had learned from its mistakes. He pointed to the lack of any enforcement applications since 2007.

[26] Mr Farrow accepted that the community’s level of tolerance for drunken behaviour may have changed. However he argued that most of the evidence was anecdotal, and there was no proof that distinguished the company’s patrons from pedestrians who happened to be in the area. Furthermore he argued that there was no evidence linking the behaviour of patrons with the company’s management systems. He referred to our comments in The Narrows Landing Limited LLA PH 479/2003 as follows:

“Nevertheless unless neighbours are prepared to provide details of when the breaches of the Act or the Resource Management Act occur and what action was taken, it would be difficult for them to overcome the threshold of factual information required to put the applicants to proof.”

[27] He contended that unless the escape of noise resulted from bad management, then it was a resource management issue. He submitted that vandalism and disorderly behaviour were matters for the Police and that problematic student drinking was a matter for the University and the community at large.

The Objectors

[28] The Otago District Health Board did not appear at the hearing. When objectors do not appear there is no way of knowing whether they wish to maintain their objection. Furthermore, and as Mr Farrow pointed out, they are not available to be questioned as to the specifics in their statements of opposition. Accordingly the objection can be given little, if any, weight. The same reasoning can be applied to Hayward College, and Division of Health Sciences of the University of Otago. In these two cases both objectors were good enough to advise of their unavailability. They requested Mr D M Richardson to look after their interests. Mr Richardson said that he could answer questions on their behalf, but in reality he was unable to do so. While we accept that they maintain their opposition to the renewal, we do not have sufficient information to make a ruling as to their status. In those circumstances the objections can have little probative value.

[29] Mrs Donna-Rose McKay has been required to stay in the Dunedin Public Hospital twice in the past 24 months. Her room faced Frederick Street and she was consistently disturbed by excessive noise coming from the “Bowling Green Hotel”. She referred in particular to the bass music. She said that sleep was impossible for her and her husband as well as other patients. She argued that the continuation of the licence placed people’s health and dignity at risk.

[30] Mr P R Walker is the Head of Cumberland College. He lives on the first floor from where he can see the “Bowling Green Hotel” as well as patrons entering and leaving. Although he was challenged as to the non-specifics of his evidence he said that he saw patrons constantly and witnessed their behaviour.

[31] He stated that the College accommodates 432 first year university students. He described the College as being a close neighbour diagonally across State Highway One. He said that the building was not double-glazed and was negatively affected by the company’s activity. He said that music from the tavern was easily audible inside the College and often until 3.00 am.

[32] Mr Walker argued that a large number of patrons left the tavern heavily intoxicated, particularly after midnight, and he thought their behaviour was disturbing and damaging. Such conduct occurred mainly on Wednesdays through to Saturdays. In his view the College was affected by the noise from patrons shouting, swearing, and screaming, as well as vandalism, damage and offensive behaviour. He believed there was little respect shown for College property, residents or staff.
[33] Mr Walker referred to a comment made by Mr Deason and reported in the Otago Daily Times (21 December 2007), “I’ve just finished the annual budgets and I’m budgeting for at least another two, minimum, court appearances this coming year”. Mr Deason stated that he made the comments in response to a suggestion that there was likely to be greater and more effective supervision of licensed premises. The comments do not help to inspire respect for his commitment to the responsibilities associated with the grant of a licence.

[34] Mr Walker argued that there were up to 1000 people residing in close proximity the tavern. The significant residences were Cumberland College, Hayward College, the Dunedin Hospital and a large number of flats. He contended that the noise from the tavern was considerably disruptive to the residents and a source of disgruntlement to them, quite apart from the example set by the patrons. After hearing from Mr Walker we were in no doubt that he was entitled to object to the renewal as the College had an interest in the application greater than the public generally.

[35] Mr D M Richardson is the Director of Social Services of the University of Otago. He said that there was a wider Dunedin issue at stake. The University was concerned that top students and staff would choose not to come to Dunedin and the University of Otago, if they had a perception of disorder in the campus area. He stated that in support of its objection, the University had consulted widely with its Service and Operational Managers, as well as Heads of Colleges and their staff.

[36] In addition Mr Richardson submitted that relevant research had been studied. He argued that there was growing international research pointing to a positive association between the geographic density of alcohol outlets and the incidence of a range of alcohol-related harms. For example he referred to a recent paper entitled “Alcohol outlet density and university student drinking: A national study”. The final version of the report was accepted on 13 March 2008. In the study, Kypros Kypri and three colleagues examined the association between density of alcohol outlets with drinking levels and harm among students. They found a positive correlation between outlet densities and the incidence of heavy episodic drinking, risk behaviours and related consequences.

[37] Mr Richardson stressed the seriousness with which the University viewed the protection of its special environment. It saw the key problem as the management of alcohol related disorder in the North Dunedin area. Mr Richardson referred to the number of students and others who lived within a 170 metre radius of the “Bowling Green Hotel”. His conservative estimate was 1000 students who were likely to have their work, study and sleep patterns affected by the existing trading hours of the tavern.

[38] He argued that the maintenance and/or enhancement of the quality of the Campus environment was essential for the university’s future. He referred to the Working Party on Student Behaviour convened in 2006, and the results of the consultation process. The responses reflected a desire to effect a change to the current anti-social culture. The emphasis was on improving the safety and quality of the student residential and campus experience.

[39] The University argued for a refusal of the renewal. Alternatively Mr Richardson suggested a reduction in the closing time to 11.00 pm. This was based on the high density of residents in the area and the belief that the length of the trading hours of outlets close to the campus was counter-productive to the health and safety of first year students. The University does not think it appropriate or desirable to have such a high number of liquor outlets so close to the campus, allowed to operate to 3.00 am. After hearing from Mr Richardson we were in no doubt that the University had an interest in the application (and the outcome) greater than the public generally. Mr Farrow virtually conceded as much when he argued that problematic student drinking was a matter for the University.

The Medical Officer of Health

[40] Doctor John David Holmes is a registered medical practitioner. He was designated as Dunedin’s Medical Officer of Health in July 1993. As such he is required to report on all applications for renewal of an on-licence. He referred to the tavern’s proximity to Dunedin Hospital. He said that that the hospital was between 25 and 75 metres from the tavern. The hospital has six floors of wards with double-glazed rooms containing about 340 beds, half of which overlook Frederick Street. He disputed the suggestion made by Mr Flaherty that the hospital contributed to the general noise from its services plant within the tower on Frederick Street. He said that he had checked with the engineers and there was no such machinery in either tower.

[41] Dr Holmes produced a photomontage showing the density of homes and the halls of residence. He stated that in 1992, Hayward College was established from the previous Queen Mary Maternity Hospital. It has 162 rooms with double-glazing. The nearest rooms are situated about 50 metres from the Frederick Street entrance to the tavern. He argued that with the considerable amount of student accommodation in the area, it would be reasonable to apply the City Council’s recommended hours as if the tavern was situated in a residential area.

The District Licensing Agency Inspector

[42] Mr Antony Stewart Mole has been a Liquor Licensing Inspector for eight years. He said there had been difficulty about receiving complaints from the hospital, which he believed had resulted from a breakdown in communication. He also made reference to the fact that Mr Deason had publicly requested people to ring him direct if they had any noise concerns. He produced the summary of noise complaints since the licence had last been renewed. These showed a total of 25 noise complaints of which 12 required some form of action by the Noise Control Officer, and seven required no action. The last complaint, which resulted in a verbal warning, was on 12 July 2008.

The Authority’s Decision and Reasons

[43] 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.

[44] An explanation of our role in considering a renewal application was given by of McGechan J in Buzz & Bear Limited v Woodroffe [1996] NZAR 404. He commented as follows:

“There is no doubt that upon renewal the Authority, which is obliged to consider conditions and reports, and to confirm on same or altered conditions (or to refuse renewal), can consider whether existing hours are appropriate and alter those hours. The restraint, and safeguard against ill-informed tinkering, is that such can occur only in response to inspectors’ or Police reports, or at the request of the licensee itself.

I am satisfied it was within powers, and proper, for the Authority to take into account, not only the specifics of the Cork ‘n’ Fork operation, but also more general community concerns which had been made known to it. Quite simply why not? Of course the Authority must be closely concerned with the actual operation of the actual licensed premises, here the Cork ‘n’ Fork. One does not renew a licence without thinking about the licensee and his operations. That is directed by s.22 (a) and (c). However, there is no logical or policy need to stop at that, as the licensee urges.

Times change. Communities and environments change. Social habits and levels of tolerance change. Obviously it would have been seen by the legislature to be wise to keep conditions imposed under review in light of potential social change. The licensee’s submissions would have licence conditions frozen in some time warp while the world marches on; not, even in the arcane world of liquor licensing, a likely legislative intention. Section 4 interpretation directives align with common sense to point towards allowing the Authority to engage in a wider perspective. It can keep its eye on wider trends and needs in a specialist area where it has unique, and uniquely current, expertise. Any licensee takes a licence under risk that conditions may change, and a report may recommend adjustment. There is no asset protected for all time whatever may happen outside.”

[45] On a renewal of a licence it is up to the applicant to establish its suitability to continue to hold the licence in its present form. In making its decision the Authority’s duty is to review the way the company has operated the premises over the last three years. While we accept that the company has been sanctioned for its past behaviour, the fact is that very few (if any) licensed premises have appeared before us so regularly. Notwithstanding Mr Farrow’s submissions, it was our view that the impact of the evidence produced by the objectors combined with the evidence from the Inspector and the Medical Officer of Health, was considerable. The portrait was painted of a business that was out of touch with the impact its activities were having on the community.

[46] Because of the premises' location close to student accommodation, and because it is a popular destination, there has developed a tension between the tavern and the authorities responsible for the safety and well-being of the students. Although it is sometimes difficult to differentiate between the company’s patrons and other pedestrians, there was sufficient evidence (notwithstanding the affidavit from a neighbour), to confirm that the company’s patrons are a source of annoyance to others who live and work in the general area. It has to be recognised that the community’s attitude to drunken behaviour is becoming less and less tolerant. By stimulating rather than meeting demand, the company runs the risk of being held accountable for the behaviour of its patrons.

[47] 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:

"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."

[48] In this case, the company has failed to satisfy us that it is capable of controlling the escape of noise. In our view it is no longer sufficient to react to concerns that are raised by neighbours and others. Because of its location close to residential style buildings, the company has a responsibility to be much more pro-active.

[49] At any event the noise levels are currently non-compliant with the District Plan. While we appreciate the company's initiative in obtaining a report, and its candour in producing it, there is no way of knowing when the improvements will be made, or whether they will be successful. We did not think that the company’s reason for declining to install an air-lock lobby was particularly valid. It might have to address any lack of security in another way. Those are issues that it may have to resolve with its consultant. The evidence satisfied us that the company’s activities were the source of noise nuisance in the neighbourhood, and that the activities should be curtailed.

[50] On the other hand we are not unaware that the object of the Act refers to a regulatory system that is ‘reasonable’. In our view it would be an unreasonable response to the evidence to refuse to renew the licence. One of the alternatives available to us is to truncate the period of renewal in order to step up the level of monitoring. However the formality of this process can be costly and inconvenient, and there is less certainty for any licensee who might wish to carry out improvements. The rights of objectors are to some extent protected by the enforcement processes in s.132 of the Act. The company has the right to apply for a variation if it can show that the matters raised in this decision have been adequately addressed.

[51] One of the remaining options open to us is to limit the trading hours. In considering an application for the renewal of an on-licence, we are also 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 on 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 anti-social behaviour. 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] Experience has made us very wary of the impact of licensed premises on the amenities of a community. Noise and behavioural nuisance come up at more public hearings than any other matter. So much so, that where there are residential neighbours, we now consistently maintain a conservative attitude when fixing the hours of trading. Licensees have to learn to adapt their business plans from time to time. It would also be helpful if the monitoring agencies looked at the problems raised at this hearing, and worked towards up-dating the City’s licensing policy.

[54] We accept that the hours of trading are not the sole criterion to be considered. It can be argued that problems arising from the over-consumption of liquor can relate more to the management of the premises where the consumption is taking place, rather than the hours of operation. However it is our experience that the adverse impact from licensing activities on people’s quality of life (such as unruly behaviour and noise), that occur within central business areas, are manifestly greater when they occur close to a predominantly residential environment.

[55] In 1995 the Authority recognised that each case must be dealt with on an individual basis but offered these guidelines in the decision of K R Burton & C A Burton LLA 2020-2025/95:

• (a) If there are residential neighbours closure is around 11pm weekdays and at midnight or 1.00am on Friday and Saturday nights;
• (b) In other cases closure is at 3am; and
• (c) 24-hour licences are the exception rather than the norm."
  

[56] Finally. in coming to this decision we have been influenced by the provisions of s.4(2) of the Act.

“The Licensing Authority, every District Licensing Agency, and any Court hearing any appeal against any decision of the Licensing Authority, shall exercise its jurisdiction, powers and discretions under this Act in the manner that is most likely to promote the object of the Act.”

[57] For the reasons given, the on-licence issued to Rosehill Properties Limited will be renewed for three years. The trading hours will be:

Monday to Saturday 11.00 am to 1.00 am the following day

Sunday 11.00 am to 10.00 pm

DATED at WELLINGTON this 6th day of October 2008

Judge E W Unwin
Chairman

The Bowling Green Hotel.doc