August, re [2009] NZLLA 409 (21 April 2009)

New Zealand Liquor Licensing Authority

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August, re [2009] NZLLA 409 (21 April 2009)

Last Updated: 6 April 2010

Decision No. PH 409/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by RAYMOND CLARENCE AUGUST, JUDY RAE AUGUST and LEONIE ELAINE BROWN, trading in partnership pursuant to s.9 of the Act for an on-licence in respect of premises situated at 25 Avian Road, Blue Mountains, Upper Hutt, known as “Harley Tours Cafe”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 31 March 2009

APPEARANCES

Mr P G Logan – for applicant
Mr A R Cox – Upper Hutt District Licensing Agency Inspector – to assist
Sergeant S A Hughes – NZ Police – to assist
Mrs J A Parris – representing Medical Officer of Health – to assist

Objectors

Mrs N J E McFarlane
Miss P C Hamilton
Ms H A McLeay

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an opposed application by Raymond Clarence August, Judy Rae August and Leonie Elaine Brown, trading in partnership, for an on-licence in respect of premises situated at 25 Avian Road in the Blue Mountains, inland from Upper Hutt. The site is in an established rural-residential area, which is characterised by generally low-density residential lots. There are about 40 dwellings on Avian Road as well as the nearby Avian Close. The primary activity in the area is residential, which is in contrast to the zoning of the area being (Rural Hill (Blue Mountains)). The area has been described as a residential enclave otherwise located in a rural setting.

[2] Two years ago the partnership established a multi-purpose business on the site. The primary business consists of Harley Davidson motorcycle tours. In addition the partnership operates a craft shop, selling crystal. Finally there is a café. The total area of the site is 4035m2. Apart from the café there is an existing dwelling, the craft shop, a building that contains the applicant’s motor cycles, and an implement shed. A copy of the business brochure entitled “The Blue Mountain Experience” was tendered to the hearing.

[3] The applicant holds a resource consent for the establishment and operation of the café, craft shop and motor cycle tours business. The consent was gained retrospectively following a public hearing at which one of the objectors was present. The Hearings Committee of the Upper Hutt City Council stated in its decision that it was satisfied that given the limited hours of operation, the effects of operating the café, craft shop, and motorcycle tours would be no more than minor.

[4] In granting the consent the Council imposed a number of conditions. These including a limitation on the trading hours between 10.00 am and 4.30 pm, and a limitation on the trading days from Thursday to Sunday inclusive and public holidays. There was also a condition that the partnership could only cater for a maximum of 25 patrons at any one time. In addition the applicant partnership was required to establish 14 on-site car parks. Although we had the benefit of a copy of the resource consent, the certificate required under s.9(1)(e) of the Act had not been received by the time of the public hearing.

[5] In accordance with the consent, the partnership sought trading hours between 10.00 am and 4.30 pm Thursday to Sunday inclusive, as well as during public holidays.

[6] There was no opposition to the application from the Police, or the Medical Officer of Health, or the District Licensing Agency Inspector. Public notification of the applications attracted three letters of objection, although one of the letters had a number of signatures. A total of six residents expressed opposition to the proposal. The objectors raised a number of concerns such as the inappropriate location of the business in an isolated rural setting, and the narrow winding road on which the business is located.

The Application

[7] Mr P G Logan represented the partnership. He made a number of submissions the details of which were confirmed by Mr Raymond Clarence August, one of the partners. He described the business as small-scale, with the café serving up to 30-40 people a week. Mr Logan advised that in the last two years there had been three major functions at which 10-20 people had been present. He stated that the clientele was predominantly middle-aged. Mr August confirmed that the café was totally separated from the other two businesses.

[8] Mr Logan stated that the application had resulted from customer feedback with many patrons expecting to be able to enjoy liquor with their meals throughout the day. He pointed out that since the various businesses had been established, there had been no complaints received by the Council or the Police. He contended that the members of partnership were suitable to hold a licence. Mr August advised that two of the partners intended to obtain General Manager’s Certificates.

[9] Mr Logan pointed out that there were no neighbours in direct view of the café. He argued that the various objections had not addressed the criteria, but rather they had raised issues of a resource management nature. He stressed that a large part of the café’s appeal was its tranquillity and peacefulness, and its semi-rural surroundings. He stated that the partnership had no wish to change this atmosphere, and genuinely believed that the grant of a licence would not increase patronage or traffic. Finally, Mr Logan referred to the valid Resource Management consent and the lack of opposition from the reporting agencies.

The Objections

[10] Miss P C Hamilton read her original objection. She argued that Avian Road was not a suitable location for a licensed café. She said that the road had become increasingly busy in comparison to what it once was. On several occasions she had had difficulty in gaining access to her own driveway. She said that she had noticed a change in the environment since the café had opened. She referred to issues such as noise, reduced privacy, and driveway damage. No specific incidents were mentioned, although she did give evidence about the narrow road. She said that her main concern was that a liquor licence would broaden the client base, thereby aggravating the existing situation.

[11] Mrs N J E McFarlane referred to the original objection signed on behalf of five properties in Avian Road. It was alleged that the café had already had an impact on other residents with increased traffic, noise, and parking issues. Reference was made to the narrowness of the road and the lack of footpaths. The general concern was that an on-licence might well increase patronage and exacerbate issues already experienced by other residents in Avian Road.

[12] Mrs McFarlane produced photographs to show how the road became almost blocked when functions were held at the café. She had been surprised to discover at the hearing, that the area for the 14 on-site car parks had been cleared and completed the day before the hearing. It is assumed that given the maximum number of patrons and the on-site car parks, there is little likelihood of the road being blocked in the future. At any event those are issues that we have no jurisdiction over.

[13] Mrs McFarlane lacked confidence in the partnership’s ability to cease selling liquor after 4.30 pm. She also complained about functions that had been held on the site, with people encouraged to bring their own liquor. We were advised that these had been private functions. Mrs McFarlane was advised that if a licence were to be granted, then any function at the café involving liquor would have to finish at 4.30 pm, unless a special licence had been obtained.

[14] Ms Helen McLeay argued that the cafe was operated ostensibly out of a garage in a back garden in a very quiet rural area. She thought that with the current drink-driving campaigns, it was quite inappropriate to consider granting a licence in a residential cul de sac with the only access being a single lane, unlit, winding road. She made a passing reference to intimidation and bullying by one of the applicants but this comment was taken no further. She also expressed concern about the applicant’s ability to host private parties outside the times granted in the resource consent.

The Authority’s Decision and Reasons

[15] The evidence given by the objectors was reasonably non-specific. In other words there were very few details of incidents affecting the objectors’ enjoyment of their homes. The lack of probative evidence makes it difficult for an applicant to refute such claims. In the decision of The Narrows Landing Limited LLA PH 479/2003 it was stated:

“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.”

[16] As all parties appreciate, the criteria to which we must have regard when considering an application for an on-licence are restricted to the matters set out in s.13(1) of the Act. The criteria are:

(a) The suitability of the applicant:

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

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

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

(e) The applicant’s proposals relating to –

• (i) The sale and supply of non-alcoholic refreshments and food; and
• (ii) The sale and supply of low-alcohol beverages; and
• (iii) The provision of assistance with or information about alternative forms of transport from the licensed premises:

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

(i) The sale or supply of any other goods besides liquor, or

(ii) The provision of any services other than those directly related to the sale or supply of liquor, -

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

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

[17] The partnership has effectively been able to establish all these criteria. The only criteria that could be regarded as relevant to this particular application are:

• [a] The suitability of the applicant company; and
  
• [b] The days on which and the hours during which the company proposes to sell liquor;
  

[18] There are other aspects of the Act that also need to be considered. Section 14(5)(a) of the Act states as follows:

On granting an application for an on-licence, the Licensing Authority or District Licensing Agency, as the case may be, may impose conditions relating to the following matters:

(a) The days on which and the hours during which liquor may be sold:

[19] Section 14(7) of the Act impacts upon our ability to fix the trading hours. We may take into account environmental matters such as the activities being conducted in the neighbourhood. The section provides:

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

[20] There was no evidence that reflected on the suitability of any of the three partners. As stated above, there was a passing reference to allegations of intimidation and/or bullying. However, no evidence was received in support. The objectors were concerned that the partnership would ignore the restricted trading hours but that is conjecture. The three partners have shown that they can operate three businesses on the site without apparently causing any concerns to the authorities. Given the lack of opposition from the reporting agencies, we believe that the partnership has established its overall suitability.

[21] We refer to the proposed trading hours. Our policy is to act conservatively when fixing the operating hours for a new licence. However, in this case the hours have already been severely restricted. It is clear that in seeking to minimise any impact on the neighbours, the Council has not only restricted the trading hours, but also restricted the days that the café (and other businesses) may open.

[22] It is important to stress that the Council has already given permission for the café to open. Any noise or disruption that has apparently been experienced by the objectors up to now is likely to continue. There is nothing we can do about that. The issue is whether the grant of a licence will increase the numbers of people attending the café, or change the behaviour of the customers. In our view it will do neither. We see this initiative as a very low key, with the sale of liquor playing a very small part in the operation. We do not expect improper patron behaviour to occur in a licensed café or restaurant.

[23] It is important that the objectors are aware that any new licence is issued for a period of one year. This gives residents and the authorities the opportunity to monitor the business and the operation of the licence. If the partnership shows a 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. In this way the company has a clear incentive to ensure that any concerns expressed by the objectors do not become reality.

[24] In this case, many of the concerns that were raised related to resource management matters. Subject to our comments above, our jurisdiction is limited to the sale and supply of liquor. We refer to our decision in Sprig and Fern Milton Street Limited LLA PH 354/2007 in which we said:

“Concerns by residents about anti-social behaviour or the escape of noise, will not in themselves be sufficient to prevent the grant of a licence. In the majority of licence applications, the essential issues to be determined by the Authority will relate to the suitability of the applicant, and the days and hours of operation. The tailoring of conditions in each licence to meet each particular factual situation is the responsibility of the Liquor Licensing Authority, or if unopposed, the District Licensing Agency.

Parliament has deliberately separated the process of determining site suitability with licence suitability. It is the local authority which determines whether the site is suitable. It does so by reference to planning requirements including the particular zone in which the proposed business is located. It is the Agency or Authority which then determines whether an applicant is suitable.”

[25] In summary therefore, we are satisfied as to the matters to which we must have regard as set out in s.13(1) of the Act. We grant the applicant an on-licence for the sale and supply of liquor for consumption on the premises to any person present on the premises. A copy of the restaurant style licence setting out the conditions to which it is subject will be attached to this decision.

[26] The days and hours of operation for the on-licence will be:

Thursday to Sunday and public holidays 10.00 am to 4.30 pm

[27] The licence will not issue until the expiry of 20 working days from the date of this decision. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal. In addition all clearances must be obtained before the licence can issue. We refer in particular to the filing of the s.9(1)(e) certificate. The Agency will need to ensure that a certificated manager is available before liquor can be sold. The partnership is not entitled to sell liquor until the licence is issued.

[28] The company’s attention is drawn to ss.25 and 115(3) of the Act obliging the holder of an on-licence to display,

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

DATED at WELLINGTON this 21st day of April 2009

Judge E W Unwin
Chairman

Harley Tours Cafe.doc