White Pepper Limited [2009] NZLLA 853 (10 August 2009)

Last Updated: 24 January 2012

Decision No. PH 853/2009

IN THE MATTER of the Sale of Liquor Act

AND

IN THE MATTER of an application by WHITE PEPPER LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 2 Hobson Street, Auckland, known as “Suite”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 20/21 July 2009

Final submissions from counsel for the applicant received on 4 August 2009
Final submission from counsel for the objectors received on 5 August 2009

APPEARANCES

Mr R K M Hawk and Mrs M H Hill – for applicant
Mr C Baker and Ms J M Rushton – for objectors – in opposition
Mr A T Foster – objector
Miss A L Marsh – Auckland District Licensing Agency Inspector – to assist
Mr G S Whittle – NZ Police – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This on-licence has had a short, unusual and interesting history. The premises are situated on the corner of Hobson Street and Wolfe Street in the Auckland CBD, and the business trades under the name of “Suite”. The bar is in the basement of a building known as Dunningham House. The building comprises 16 residential apartments and two commercial premises. One of the commercial units is a hairdressing salon. The other is “Suite”.

[2] White Pepper Limited (hereafter called “the company”) took over an existing business called “Pickle” on 17 March 2006. The previous business had operated under a licence that enabled the licensee to sell liquor to 5.00 am. However, this late hour was seldom used. Consequently the business had little impact on the surrounding residents. When the company took over the business, it initially traded on a temporary authority. However, the base licence expired on 3 August 2006. The company had to cease trading until its application for an on-licence was processed.

[3] The application for the licence attracted a number of objections from the residents of the building in which the business was housed. The objections related to unacceptable noise levels emanating from the premises causing sleep disruption. After discussions with the company’s representative, the objectors withdrew their objections and the application was granted on the papers. In our decision (LLA 736/2006) we recorded that an accord had been reached in the following terms:

“Our Secretary has now received advice from the objectors that the applicant has addressed their concerns and measures have been established to ameliorate noise emanations from the premises. The objectors state that they are satisfied with these measures and they no longer wish to pursue their opposition to the application.”

[4] Accordingly the on-licence was issued on 18 September 2006. The hours authorised for the sale of liquor were between 11.00 am and 5.00 am daily. When the company made its first renewal application it attracted a plethora of written material and objections from neighbouring residents. The documents cited incidents of noise, antisocial patron behaviour, as well as litter and offensive detritus outside and around the environs of the company’s premises. There were four individual objectors who resided in the building above the new business. In addition there was a list signed by the other occupants of the building supporting the objection process. None of the reporting agencies opposed the application.

[5] A public hearing took place on 12 February 2008 and our decision was issued on 10 March 2008. In that decision (LLA PH 364/2008), we truncated the renewal period requiring the licensee to re-apply for renewal on 18 March 2009, thereby giving the company a further ‘probationary year’. In addition we reduced the closing hour to 3.00 am. We said:

“In this case, the company has shown that initially it responded to the complaints that were made. However, it is our view that it failed to live up to the assurances given to Ms Howse, and failed to consider the hard options such as turning off the music or changing the way it was doing business. The evidence of discomfort caused by the licensee’s operation is unworthy of a company that has won awards for commercial excellence. And yet there was no sign of a noise management plan. We thought that the targeting of one of the objectors signified a complete lack of understanding of the problem.

We believe it will be important to review the position again in the near future to give all parties the opportunity to consider the implications of this decision and take what action they may consider necessary. We need to make it perfectly clear that the premises will be closely monitored over the next twelve months. If the complaints persist then the existence of the licence will be considered as well as a further reduction in the trading hours. We do not rule out the possibility that if the company can satisfy us that the operation is so well managed that the trading hours could be extended without placing the residents’ quality of life at risk.”

[6] The company appealed against the decision. As it happens the objectors declined to be represented, and accordingly there was no respondent in the appeal process. The absence of an effective respondent may have accounted for the delay in having the appeal finally determined.

[7] On 20 March 2008 in the High Court of Auckland the company obtained an order granting a stay of the decision. The actual wording of the stay is important as it impacts on subsequent procedures. The stay reads as follows:

“THIS COURT ORDERS that the decision of the Liquor Licensing Authority dated 10 March 2008 in Decision PH364/2008 granting a renewal of the on-licence for the Appellant but restricting trading hours to Monday to Saturday from 11am to 3am instead of 11am to 5am shall be stayed in force until further order of this Honourable Court (or pending the final determination of this appeal) and that the Appellant be entitled to trade in the meantime on Monday to Sunday from 11am to 5am the following day.”

[8] Thus the company has continued to trade to 5.00 am. On 23 October 2008 there was a hearing in the High Court. In a reserved decision Mr Justice Williams determined that there was no general right of appeal against a decision where a licence had been renewed, albeit with changed conditions. He ordered that the company amend its notice of appeal so that it was based on the allegation that the decision was erroneous in point of law. An amended appeal was duly filed. Regrettably the amended appeal did not initially find its way to the High Court file causing further delay.

[9] In the interim, the company filed a further renewal application. In our original decision we had required it to do so on or before 18 March 2009. It was necessary to do so to preserve the licence in case the appeal was dismissed. In the application the company sought to amend the conditions of the licence by restoring the closing time from 3.00 am to 5.00 am. There was no opposition from the Police, the Medical Officer of Health or the District Licensing Agency Inspector. However, once again objections were received from residents in Dunningham House as well as a resident of another nearby apartment building. The basis of the objections was the suitability of the company and the proposed trading hours.

[10] Once again a large unstructured bundle of material was produced. The actual objections were as follows:

• [a] Ms Kimberley McMurray Cathcart and Mark Cathcart as trustees for the owner of Unit 1A. They objected in particular to the proposed increase in the trading hours. They made reference to the difficulty in attracting tenants because of the hours of operation and consequential noise from the bar
  
• [b] Ms P House, owner of Unit 2A. Ms House objected to a bar located in a basement of a residential building having the right to remain open to 5.00 am. She had no confidence that the company would respect the rights of the residents if allowed to trade to 5.00 am.
  
• [c] There were documents filed by the owners or tenants of the following units asking that the decision to restrict trading to 3.00 am be upheld. Units 1A, 2A, 2B, 2C, 3A, 3B, 4A, and 5A. The owner of Unit 4C asked that the closing time be brought back to 2.00 am. The tenant of the hairdressing salon referred to glass and bottles and cigarettes being found in the planter boxes every weekend.
  
• [d] Mr Ian Reid is the owner of Unit 5A and the Body Corporate’s building manager. In addition he is as the Chairperson of the Dunningham House Building Committee. He had arranged for all complaints to be channelled through him. In addition to co-ordinating the various objections he filed a document headed ‘Risk Management Register of Residents Internal and Environs Complaints and Incidents for 2008-2009’. This document contained a summary of the various complaints in the document. However, Mr Reid had listed a number of incidents that had occurred prior to the date of the previous hearing on 12 February 2008.
  
• [e] Kerrie and Alan Penny and Robert Gray the owners of Unit 3A suggested a midnight closure that would give owners and tenants a chance to sleep. They thought that the presence of a late night bar in a residential building was unacceptable.
  
• [f] Pamela and Logan Moss own Unit 2C. They considered that the trading hours sought were incompatible with the residential nature of the premises. They had no confidence in the licensee’s regard for the tenants of the building.
  
• [g] Mr Adrian Foster resides in another apartment building at 10-14 Hobson Street. He referred to the times when patrons left the premises. He described the resultant noise as penetrating and raucous, and described behaviour as unpleasant and unreasonable. Reference was also made to vomit and broken glass in the area.
  

The Issue of Jurisdiction

[11] Mr C Baker represented all the objectors except Mr Foster. Prior to the hearing he had submitted that pursuant to the stay order in the High Court our decision had no effect until further order of the High Court or the final determination of the appeal. Accordingly he argued that we had no jurisdiction to hear the renewal application.

[12] Mr J Oliver from the Crown Law office was representing the Authority in an assisting capacity. He had held discussions with Mr R K M Hawk about the process. They had informally agreed that the determination of the present renewal application would be a new decision to which the stay would not apply. As a result a further fixture for the appeal in the High Court had not been applied for. Accordingly we indicated to Mr Baker that we thought the hearing should proceed. At the hearing on 20 July 2009, we duly heard evidence from the applicant and its witnesses as well as from the objectors.

[13] At the conclusion of the evidence Mr Baker gave closing submissions in which he repeated his claim that we had no jurisdiction to hear the application. His submissions may be summarised as follows. He referred us to s.147A(2) of the Act. This reads:

Where an appeal is filed against any decision of the Licensing Authority, other than a decision to which section 147 of this Act applies, the High Court may, of its own motion or an application made for the purpose, order that the decision shall cease to continue in force and shall have no effect pending the final determination of the appeal.

[14] Mr Baker contended that in accordance with this section the High Court had effectively ordered that our decision had no effect. This included not only the reduction in trading hours but also the reduced renewal period. Mr Baker therefore submitted that the only licence currently in force was the original licence, which stays in force until the renewal has been determined (see s.17(1)(b) of the Act). He claimed that the company was seeking to renew a licence that had been renewed by a decision that had no force or effect until further order of the High Court or determination of the appeal.

[15] Having indicated that we considered that Mr Baker’s arguments appeared to have merit, Mr Hawk sought an adjournment to enable him to take further instructions. Like Mr Baker we assumed that he would withdraw the appeal to allow us to deal with the renewal application. However, Mr Hawk subsequently filed submissions arguing that we did indeed have jurisdiction to make a decision on the renewal of the licence. He appeared to contend that the licence under review was the original licence that had been renewed by us in our decision. He argued that it was immaterial whether our decision was or was not in force, because the company was entitled to seek a renewal at any time. It appears that he was concerned about the fact that the licence number had been changed, but as he pointed out, this is a technicality that should not affect the outcome of the argument.

[16] Mr Baker pointed out that if Mr Hawk was correct then there were two concurrent applications for renewal of the same licence alive and yet to be determined. He argued that each could have a different outcome. He stated that he had anticipated that the company would withdraw the appeal thereby confirming that the stay was no longer in force and allowing the present renewal application to be determined. He expressed the hope that should his submissions on jurisdiction be upheld the company might be given the opportunity to withdraw the appeal to prevent the waste of time and costs resulting from an aborted hearing.

The Authority’s Decision and Reasons

[17] In our view the wording of the High Court stay as well as the wording of s.147A(2) of the Act could not be clearer. Our decision of 10 March 2008 has been stayed until further order of the High Court or pending the final determination of the appeal. According to the Act our decision ceases to continue in force. We note that those words have been deleted from the High Court order and replaced by the words “be stayed in force”. Nevertheless we believe that we are effectively functus until the High Court revises its order or determines the appeal. With respect we have no jurisdiction to act as if the order had not been made.

[18] For the sake of the parties we can only hope that the appeal will now be pursued with due diligence. It seems to us that in due course (depending on the outcome of the appeal) we will have to hear further evidence about the operation of the premises from the date of the last hearing until the date of the next hearing. We regret the inconvenience that this will cause the objectors but we believe we have no alternative.

[19] Until the High Court decides the appeal it is impossible to say what is to happen with this licence. We hope that in the meantime all parties will take the opportunity to streamline and re-focus their evidence. A large part of the evidence that was given at the last hearing was unstructured and vague. We repeat our request that the company investigate and adopt a noise management plan.

[20] For the reasons given, we believe that we have no jurisdiction to hear the renewal application, until the final determination of the appeal or until the High Court makes an appropriate order.

DATED at WELLINGTON this 10TH day of August 2009

Judge E W Unwin
Chairman

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