NZ Farm Co, re [2009] NZLLA 557 (28 May 2009)

Last Updated: 2 October 2010

Decision No. PH 557/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by FARM CO NZ LIMITED for an off-licence pursuant to s.31 of the Act in respect of premises situated at Shop DM1, Milford Shopping Centre, 143 Kitchener Road, Milford, North Shore City, known as “NZ Farm Co”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at AUCKLAND on 18 May 2009

APPEARANCES

Mr A D N Perry – on behalf of applicant
Mr E K Dyssel – North Shore District Licensing Agency Inspector – in opposition
Constable S J Chenery – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Farm Co NZ Limited (hereafter called “the company”) for an off-licence in respect of premises situated in the Milford Shopping Centre in Milford, North Shore City. It is known as “NZ Farm Co”.

[2] The application is brought pursuant to s.36(1)(d)(ii) of the Act. This section provides that an off-licence may be granted to a grocery store where the Licensing Authority, or the District Licensing Agency as the case may be, is satisfied that the principal business of the store is the sale of main order household foodstuff requirements.

[3] The concept has been considered by the company over the last 18 months. It has a vision to satisfy their “discerning” consumers in respect of environmental sustainability, animal welfare, product integrity and product quality. As a result they established a large store which commenced trading in October last year. The aim of the store is to provide a shopping experience, and a large part of the store relates to meat offerings and meat solutions. In addition however, there are in-season quality vegetables, continental small goods, condiments and the like.

[4] The application drew adverse reports from both the Police and the District Licensing Agency Inspector. Having viewed the premises they were of the opinion that the business traded more as a delicatessen, or a butcher’s shop, rather than a grocery store. The hours sought for the sale of liquor are between 8.00 am and 10.00 pm daily.

[5] The evidence that we have heard from those opposing the application confirms that there are no issues about the suitability of the applicant. There is no suggestion that the sale of wine and/or beer would in any way undermine the integrity of the Act or the Act’s objectives, which in simple terms are to promote the reduction of liquor abuse. In short, the sale of liquor from these premises is unlikely to be very large. In particular the dream of the company is to try to produce wines which will be totally complementary to the type of food that is on offer, and that currently the sale of ready to eat meals is becoming more and more popular.

[6] Unbeknownst to us the company established a small café in one corner of the store approximately two months ago. This café is nominally separate but part of the overall operation. The company obtained an on-licence so that people could enjoy liquor with their meals at the café. It seems to us that the grant of the on-licence effectively prevents the grant of an off-licence because the on-licence does not relate to a hotel or a tavern (see s.36(1)(a) of the Act). This issue has not been considered by the company in any depth and in the circumstances it may well take legal advice because it has options, initially:

• (a) It may surrender the on-licence in order to be able to pursue an off-licence for the business.
• (b) It may be able to physically separate one from the other, although that is fraught with further problems.
  

[7] In any event the company needs to provide turnover figures in terms of the Sale of Liquor Regulations 1990. It is a requirement of regulation 8(ii)(j) of the Regulations that with every application of this nature, where the application relates to a grocery store, an applicant must provide evidence and certified accounts showing the percentage of turnover that is derived from the sale of main order household foodstuffs. Mr A D N Perry is the company’s managing director and he stated that the categorisation of items under the till system is ongoing, but he expects to be able to produce figures in approximately one month’s time. As a result, it may help to establish whether in fact this business is a grocery store or not.

[8] Those are all matters for the future but at this present time it is unlikely that the application can be granted for the reasons that we have stated. It is now up to the company to make its own commercial decisions as a result of this hearing and decide whether or not the application is worth pursuing. Accordingly this decision is interim only. In the next six months the company is invited to give an indication to the Inspector whether it wishes to try and conform with the Act to enable it to gain an off-licence, or whether it has decided that there is no point in pursuing the matter.

DATED at WELLINGTON this 28th day of May 2009

B M Holmes
Deputy Secretary

NZ Farm Co.doc(jeh)