Malone's [2011] NZLLA 1082 (27 September 2011)

Last Updated: 17 October 2011

[2011] NZLLA PH 1082

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MALONE’S LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 6 Miami Avenue, Surfdale, Waiheke Island, known as “Malone’s”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Ms J D Moorhead

HEARING at AUCKLAND on 16 September 2011

APPEARANCES

Miss I Malone – for applicant
No appearance by or on behalf of objectors

DECISION OF THE AUTHORITY

Introduction

[1] This application for the renewal of the on-licence in respect of premises situated at 6 Miami Avenue, Surfdale, Waiheke Island known as “Malone’s” raises two issues:

• [a] Whether or not the on-licence should be renewed; and
  
• [b] Whether its hours should be extended so that it closes at 1.00 am daily.
  

[2] None of the reporting agencies oppose the applications. However, there were objections lodged to the application to extend the hours of operation.

History

[3] In 2004 the District Licensing Agency granted a renewal of the on-licence and varied the trading hours so that it was obliged to close at 1.00 am. The application for the renewal which was heard by the Authority on 6 November 2008 attracted a number of objections. These objections raised issues of excessive noise and unruly behaviour by patrons. As a result, the Authority granted the renewal of the licence but reduced its hours as follows:

Monday to Saturday 9.00 am to 12.00 midnight

Sunday 9.00 am to 11.00 pm

[4] In its decision the Authority recorded at paragraph [33] as follows:

“What we are discussing here is a neighbourhood tavern with music and other forms of entertainment. The business used to be a restaurant with limited hours. The business is located near a residential area and it is clear that over the last three years there has been a steady escalation of noise to the detriment of the neighbourhood. The noise that has been generated has not only exceeded the Council limits, but has also at times become a serious nuisance to those who live nearby.”

[5] In its decision of 20 November 2008 (NZLLA PH 1615/2008) the Authority stated at paragraph [44]:

“If the company can satisfy its neighbours that the operation is so well managed that the trading hours could be extended back to what they were, then it may of course apply to vary the trading hours. The corollary also applies. If noise nuisance continues there is nothing to stop an application being made for the variation of the licence.”

Discussion

[6] The current application to vary the hours attracted objections from neighbouring residents. They are fearful that if the hours are extended the noise and unruly behaviour problems will recur.

[7] For the applicant, Miss Malone deposed that since 2008 significant steps have been taken to minimise noise. The building has been soundproofed. Karaoke is no longer played. Doors and curtains are closed before any music starts. Only hire solo or duo bands (except for special events such as are held on New Year’s Eve and St Patrick’s Day) are employed on the premises. Security personnel are hired for Friday and Saturday nights. Contact details are given to neighbours so that they can contact the licensee if they have concerns.

[8] Notwithstanding the applicant’s efforts to control noise and unruly behaviour, this application did attract objections from neighbours. The only reason that one of the objectors did not appear at the hearing was ill health. The other objectors chose not to attend the hearing.

[9] Significantly, from 12 September 2008 until 4 February 2010 there were no complaints to the Auckland Council concerning noise. However, since that time, namely on 30 December 2010, 26 February 2011 and 27 August 2011 excessive noise directions have been served. The Authority appreciates that on each of those occasions a special licence had been obtained for a special function. It also appreciates that the noise directions were served on each occasion before midnight. Nevertheless, the fact that three complaints concerning excessive noise resulted in excessive noise directions being served indicates that neighbours are still being bothered by excessive noise emanating from the premises.

[10] The premises are on the market for sale. Whether the business will also be sold is unknown. If that were to occur then a new purchaser wishing to continue the tavern operation would require a temporary authority. That temporary authority would rely on the existing licence for its validity. The hours of the existing licence would remain extant while the business is trading under a temporary authority. Thus, there remains a risk that a new purchaser trading under a temporary authority may be unable to control the noise issues and patrons behaviour if the hours are extended.

Decision of Authority and reasons

[11] It is clear that the reduction in the trading hours has had a significant effect on noise issues and unruly behaviour of patrons. The Authority appreciates the efforts that the applicant has made to improve the situation. Nevertheless, noise issues remain a problem. In addition there is the uncertainty over the future of the business.

[12] Taking all these factors into account the Authority is not prepared to grant the application to vary the trading hours. In the circumstances the application for the variation of trading hours is refused.

[13] The application for the renewal of the on-licence is granted on its existing terms.

DATED at WELLINGTON this 27TH day of September 2011

B M Holmes
Secretary

Malone’s.doc(aw)