Callander [2010] NZLLA 613 (25 May 2010)

Last Updated: 3 June 2010

[2010] NZLLA 613

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by HERBERT ARTHUR CALLANDER and SUSAN EVELYN MAIR, trading in partnership, pursuant to s.41 of the Act for renewal of an off-licence in respect of premises situated at 53 Elizabeth Street, Cave, known as "Cave Store & Takeaway"

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Dr J Horn
Ms J D Moorhead

DECISION

This is an application by the partnership of Herbert Arthur Callander and Susan Evelyn Mair for renewal of an off-licence in respect of premises situated at 53 Elizabeth Street, Cave, known as "Cave Store & Takeaway". The business trades in the nature a grocery store with hours authorised for liquor sales between 7.00 am and 8.30 pm daily.

The application was duly advertised and no objection or notice of desire to be heard has been received. The Police raise no matters in opposition to renewal.

An off-licence in terms of s.36(1)(d)(ii) of the Act was granted by the Timaru District Licensing Agency in 2005. Since that time the business has traded in accordance with the provisions of the Act and the conditions of the licence.

The settlement of Cave is a rural community and the applicant’s business serves a useful function in being the only retail outlet in the area. The alternative for liquor sales for off-premises consumption is the “Cave Arms Tavern”. The tavern has no separate bottle store and off-sales are conducted across the bar. For some members of the community that may well not be the preferred method of purchasing liquor for home consumption.

The Agency Inspector has drawn the Authority’s attention to the fact that the applicant’s business serves a multiplicity of functions being a mail receipt and delivery facility and takeaway shop well as functioning as the only shop in the locality selling grocery products. It has a fuel pump that dispenses diesel and 91 octane petrol, although we are satisfied that the principal business of the premises is not the sale of petrol or other automotive fuels as described in s.36(3)(a) of the Act. The next nearest alternative off-licensed outlet is at Pleasant Point, some 16 kilometres away, or at Fairlie or Timaru, both of which are approximately 30 kilometres distant.

The Inspector is mindful of recent decisions in which the Authority has been unwilling to grant or renew off-licences in respect of premises that have been adjudged to be in the nature of a ‘convenience store’, and he suggests that this business might fall into the same category. Accordingly he recommended that the matter be referred to the Authority for determination.

It would be fair to say that the ‘convenience stores’ referred to have most commonly been located in a metropolitan or urban environment, frequently within reasonable proximity to other (often larger) off-licensed outlets such as supermarkets.

The Inspector reports that he is not aware of any concerns in relation to the suitability of the applicant or the manner in which the business has been operated. Given the lack of opposition from the Police, and taking into account the relatively isolated nature of the applicant’s premises, it is clear that the business continues to fulfil a community service. In the circumstances we propose to deal with the matter on the papers.

We are satisfied as to the matters to which we must have regard as set out in s.45 of the Act. We renew the licence on the existing terms and conditions until 21 December 2012, that being the anniversary date of the licence and three years from the most recent date of expiry, and we authorise the issue of a notice of renewal.

DATED at WELLINGTON this 25th day of May 2010

_____________________
B M Holmes
Deputy Secretary

Cave Store.doc(ab)