Phillips v Point Chevalier Bowling Club Incorporated [2009] NZLLA 832 (4 August 2009)

Last Updated: 23 January 2012

Decision No. PH 832/2009
PH 833/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by POINT CHEVALIER BOWLING CLUB INCORPORATED pursuant to s.64 of the Act for renewal of a club licence in respect of premises situated at 25 Dignan Street, Point Chevalier, Auckland, known as “Point Chevalier Bowling Club”

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension of club licence number 007/CLUB/42/2004 issued to POINT CHEVALIER BOWLING CLUB INCORPORATED in respect of premises situated at 25 Dignan Street, Point Chevalier, Auckland, known as “Point Chevalier Bowling Club”

BETWEEN ANDRE CHRISTOPHER PHILLIPS

(Auckland District Licensing Agency Inspector)

Applicant

AND POINT CHEVALIER BOWLING CLUB INCORPORATED

Respondent


BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr P M McHaffie

HEARING at AUCKLAND on 20 July 2009

APPEARANCES

Mr S L Taylor – agent for respondent and applicant for renewal of club licence
Mr A C Phillips – Auckland District Licensing Agency Inspector – applicant and to assist on application for renewal of club licence
Ms A Kate and Ms B Innes – in opposition to renewal of club licence

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] On 8 September 2008, we commenced a public hearing of two applications affecting the Point Chevalier Bowling Club Incorporated (hereafter called ‘the club’). The first application was for the renewal of the club’s licence. The club operates its clubhouse and bowling greens on a sporting complex established by the Hallyburton Johnstone Trust in Dignan Street, in the Auckland suburb of Point Chevalier. The club has been fostering bowls for many years.

[2] The evidence showed that the club had approximately 80 to 85 bowling members who paid a subscription of $80 a year. In addition there were approximately 127 social members who paid $20 a year. The club was authorised to sell liquor between 8.00 am and 12.00 midnight daily. The club had decided in 2005 to discontinue the practice of hiring out the premises for private functions. The licence fell due for renewal on 21 December 2007.

[3] The renewal application attracted objections from four residents occupying three neighbouring residential properties. However, one of the objectors, Mr John Morgan, did not appear at either hearing. The remaining objectors made reference to a deck that had been recently constructed (apparently for the use of smokers). They contended that the use of the exterior deck created unacceptable noise disturbance, to the detriment of the neighbourhood. Apparently the deck was being used for the consumption of liquor and the objectors argued that this was not a permitted use.

[4] In addition the objectors had their own separate concerns that were outlined in our decision. Since the original hearing there have been one or two changes. One of the objectors, Mrs L Parker, has left the country to reside overseas. Her dwelling is currently being tenanted. The licensing consultant who appeared at the last hearing has since withdrawn.

[5] Ms A Kate and Ms B Innes who reside at 2/20 Te Ta Road, were present at both hearings. Their separate objection related to the club’s trading hours as well as issues about noise. There was no opposition to the application from the Police, or the Medical Officer of Health, and there were no outstanding compliance issues.

[6] The issue of the escape of noise from the deck was aggravated when the District Licensing Agency Inspector discovered that the deck in question was not part of the licensed premises. He pointed this out to the club in early 2008. He suggested that the club apply for a redefinition of the premises. There was no response. Although he did not oppose the renewal, the Inspector took the view that failure to remedy the illegal use of the deck called into question the club’s suitability.

[7] In order to stimulate a response, the Inspector filed an application for the suspension of the club’s licence. The ground for the application was that the premises had been conducted in breach of s.165 of the Act (unauthorised sale and supply). We heard evidence in respect of this matter also.

[8] After hearing the evidence and submissions we issued a reserved decision (see LLA PH 1372-1373/2008). The effect of the decision was to adjourn both matters for a period of eight months. This was primarily to see what action would be taken by the club in relation to the outside deck. In the decision we made the following comments:

“In this case we were surprised at the Club’s attitude (and apathy) to the plight of the neighbours. There is no expertise on the impact of the current smoking area on the neighbourhood. There has been no realistic attempt to instruct a noise expert or produce a noise management plan. There has been no thought given as to how the use (and abuse) of the deck area can be managed satisfactorily, or whether another smoker’s area can be found. It is now clear that the deck has become something of a focal point for the members. Unless something is done, the noise can only get worse. It is high time for the Club to assume responsibility for the impact it is having on the immediate neighbourhood.

In summary, the Club has failed to satisfy as to the four criteria listed above. However, the objectors did not wish the renewal application to be refused. It was also clear that the hearing took the Club somewhat by surprise. Furthermore, there was a time factor, which had an impact on the way the hearing was run. It seems to us that the issues are sufficiently serious to warrant a closer look at the Club’s activities. What we really need to establish is whether the Club intends to persist with the present arrangement or find an alternative. In fairness to the Club we have decided not to reduce the operating hours at this time.

At the adjourned hearing we will expect to hear from the Club as to the exact use of the premises by members and non-members as well as the use of the bar. In addition we expect that the Club will employ an acoustic expert to see how the noise can be contained. We expect the Club to produce a noise management plan incorporating the views of its expert. There is no guarantee that on any renewal the current trading hours will not be reduced, or that the renewal period will be for the normal three years. We will also hear fresh evidence from the reporting agencies and the objectors. Naturally we will expect to hear about any noise disturbance issues in the interim period.”

The Club’s Response

[9] At the resumed hearing, Mr S L Taylor appeared as agent for the club. We are grateful to him for his assistance to the club, and the club’s co-operation in responding to our requests. Mr Taylor advised that the club had made a decision not to seek to incorporate the deck into the licensed premises. He confirmed that since the decision, drinking on the deck had stopped. In other words there will be no further consumption of liquor on the deck.

[10] Mr Taylor confirmed that there was a separate Hall Committee that governed the way the premises were leased out. This Committee had decided (prior to the last hearing) that there would be no sub-hire to any outside group that wished to consume liquor. He noted that since the hearing, two special licences had been granted permitting the sale of liquor on the greens. He said that these were for special events, and the objectors had been advised and their written consent obtained. No noise or other management issues had arisen while the events were being held.

[11] Mr Taylor advised that following the decision, the club had hired the services of Acoustic Consultants. Noise readings had been taken over several weeks to see if the noise from people sitting on the deck complied with the District Plan. It was found that during daylight hours there was compliance if the door between the deck and the clubhouse was closed. The noise apparently exceeds the requirements of the plan at night-time.

[12] An email was produced from the tenant of the property that had been owned and occupied by Mrs Parker. This showed that the tenant had no issue with noise from the club. Mr Taylor noted that since the last hearing there had been no noise complaints lodged with the Council. The club has a policy that no amplified music is played on the deck.

[13] Mr Taylor advised that following the hearing the membership had been analysed. The constitution had been amended to provide for a number of types of membership. There are now full members, life members, associate members, honorary members, casual playing members, and social members. Each category has different rights and privileges. Only full and life members can attend and vote at meetings and hold office.

[14] As requested the club provided details of the mix of people present at the club during a typical week. In addition, the various functions and activities were outlined. It seemed clear to us that the club is currently compliant with the Act. Mr Taylor pointed out that there were 67 residential properties in the club’s vicinity, and noted that only one objection was in force.

The District Licensing Agency Inspector

[15] Mr Andre Christopher Phillips is a Liquor Licensing Inspector with the Auckland District Licensing Agency. He confirmed that there had been no noise complaints received by the Council for the past year. He had conducted a compliance visit to the premises in May 2009 and no breaches were discovered. Mr Phillips confirmed that now that the club had decided not to apply to licence the deck area, and it had now agreed that there would be no drinking on the deck, the enforcement application had brought the impasse to a satisfactory conclusion. Effectively he has achieved a result that appears to be acceptable to both parties.

The Objectors

[16] Ms A Kate and Ms B Innes expressed gratitude at being consulted before the issue of the two special licences. In addition Mr Taylor offered to provide the telephone number of the new President, who could be contacted if necessary, in the event of concerns at the way the club was conducting its activities. They noted that the noise had decreased over the past 12 months.

[17] The objectors submitted that the trading hours should be reduced to 8.00 pm Sunday to Thursday, and to 10.00 pm on Friday and Saturday. This was primarily to limit or attenuate the noise from the clubrooms. They stated that most of the noise came from the deck, particularly when the sliding door into the clubrooms was open. Such noise was mainly raucous shouting, yelling and singing and sometimes loud bass from a sound system.

The Authority’s Decision and Reasons

[18] In our view it would be undesirable to impose a suspension of the club’s licence in respect of the claim that the licence had been unlawfully. The Inspector has confirmed that he lodged the application to achieve some action from the club. While it is that the club could have responded with greater speed, has finally made an informed decision not to have the deck licensed.

[19] We were impressed with the club’s co-operation and transparency. No doubt Mr Taylor had a part to play in advising the club of its responsibility. We expect that as a result there will be less noise from that area. We assume that the club will be taking action to ensure that the club complies with the District Plan when liquor is being sold at night-time.

[20] As far as the renewal of the licence is concerned, we are required to consider the following criteria as set out in s.68 of the Act;

(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:
(d) Any matters dealt with in any report made under section 66 of this Act.

[21] There are no issues with the way that the licensee has conducted the sale and supply of liquor pursuant to the licence. In other words there are no suggestions of intoxication or selling to minors. The Police were unrepresented so it is a reasonable inference that the club does not feature on the Alco-Link data. No matters were raised in any report from the agencies.

[22] The issues are the club’s suitability as well as the conditions of the licence. If a licensee allows noise to escape to the detriment of the neighbours then that is a sign of the licensee’s unsuitability. In this case the evidence from the objectors was non-specific. While we acknowledge that the objectors live very close to the club’s premises, it is relevant to point out that there are no other persons who seem to be affected by the club’s activities.

[23] In the decision of The Narrows Landing Limited PH LLA 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.”

[24] The objectors stated that they had stopped ringing the City Council because the Council had a narrow definition and a low threshold of what is unacceptable noise. However, the number of calls made to the Council and the response provides an independent background to any claim of lack of suitability. In addition, diary notes can be invaluable in assessing the impact of a particular business or activity.

[25] We assume that now that there is a contact telephone number for a person in whom the objectors currently have confidence, there will be opportunities to make complaints direct. Based on the evidence we heard and the submissions that were made by Mr Taylor, we consider that the club is suitable to hold a club licence.

[26] The club may have been fortunate to receive the trading hours that it currently enjoys. However, that is not a ground to interfere with the present conditions. In our view there has been insufficient evidence to persuade us reduce the present trading hours as suggested by the objectors. It seems to us that the club has been quite responsible in helping to ensure that the premises are sub-leased only when liquor is not being consumed.

[27] We considered truncating the period of renewal to allow another opportunity to review the conditions of the licence. However, we note that the next renewal will be in December 2010, in just over a year’s time. In those circumstances the objectors will have adequate opportunity to monitor the club’s activities and lodge an objection if it is thought fit. In addition the Inspector is empowered to bring a further application for the suspension of the licence should the club not measure up to its responsibilities as a good neighbour.

Order

[28] For the reasons we have endeavoured to set out we make the following orders:

• [a] The application by Mr A C Phillips for the suspension of the club licence issued to Point Chevalier Bowling Club Incorporated is declined.
  
• [b] The club licence issued to Point Chevalier Bowling Club is renewed for three years with no alteration to the conditions.
  

DATED at Wellington this 4TH day of August 2009

Judge E W Unwin
Chairman

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