Trust House Ltd [2011] NZLLA 267 (1 April 2011)

Last Updated: 21 April 2011

[2011] NZLLA 267-270

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications by TRUST HOUSE LIMITED pursuant to s.41 of the Act for renewal of off-licences in respect of premises situated at 230 High Street, Masterton, known as "Homestead Complex"; and in respect of premises situated at 230 High Street, Masterton, known as "Copthorne Resort Solway Park"; and in respect of premises situated at Queen Street South, Masterton, known as "Kuripuni Sports Bar"; and in respect of premises situated at Russell Street, Masterton, known as "Liquorland Wairarapa"

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Dr J Horn

DECISION

This is an application by Trust House Limited for renewal of four off-licences in Masterton. The off-licences in question have been trading variously since 1998 (“Homestead”, Kuripuni” and “Liquorland”) and 2007 (“Copthorne Resort”).

There are no proposed changes to any of the existing trading hours and the Police and District Licensing Agency Inspector do not oppose the renewals.

Advertising has attracted an objection from Dr Stephen Palmer in his capacity as Medical Officer of Health for the Wairarapa District Health Board. Medical Officers of Health are not required to file reports in respect of off-licences in terms of ss.33 or 43 of the Act, so Dr Palmer has purported to invoke the provisions of s.32(1) of the Act contending that he is able to demonstrate a greater interest in the application than the public generally. That section relates to the grant of a new off-licence. The correct reference should have been to s.42(1), objections to renewal.

In any event Dr Palmer submits that Trust House Limited is unsuitable on the grounds that it has not taken into account the Masterton District Council’s Liquor Licensing Policy. This policy was adopted in August 2010. The policy outlines certain provisions in relation to trading hours for the different types of licences available under the Act and Dr Palmer contends that the applicant should have amended the trading hours to conform to those provisions.

The policy document holds that, as a general principle, trading hours until 10.00 pm would be considered to be the acceptable norm for off-licences. However, the policy goes on to say, at point 7.2:

“7.2 Extended licensing hours

Applications for extended licensing hours will be considered by the Masterton District Licensing Agency on a case-by-case basis. Regard will be given to:

• The nature of the licence
• The requirements of any Resource Consent conditions
• Related trading hours
• Trading history, demonstrating appropriate management controls and compliance with the Sale of Liquor Act
• Any other relevant matters.”
  

In decision [2011] NZLLA PH 91, dated 28 February 2011, we considered an application by Dr Michael Paul Bowker appealing against a decision of the Far North District Licensing Agency. That Agency had granted renewal of an off-licence in respect of premises situated at Parnell Street, Rawene, known as “Masonic Hotel”. The Authority concluded:

“The decision appealed against related to an application for the renewal of an off-licence. Thus there was already an off-licence in existence and when one considers the criteria set out in s.45 relating to applications for renewals of off-licences it is apparent that this Authority can have regard to very limited factors. These are the licensee’s suitability, the conditions attaching to the licence, the manner in which the licensee has conducted the sale and delivery of liquor pursuant to the licence and any matters set out in any report under s.43 of the Act. Dr Bowker conceded that he had no concerns concerning the suitability of Mr and Mrs Hyland. He did have concerns relating to the suitability of holders of off-licences generally. He had no comment to make in respect of the manner in which Mr and Mrs Hyland have conducted the sale and delivery of liquor or in respect of any matters dealt with in the s.43 report. Accordingly, his only interest as an objector related to conditions attaching to the licence. Again, he was more concerned with conditions which attach to off-licences generally rather than the specific licence held by Mr and Mrs Hyland. His concerns were clearly motivated by his observations of the effects of liquor abuse in the community and beyond.

Thus even if the issue of the original licence was in error, that is not a matter to which the Authority can have regard on a renewal application. The only relevant matters to which the Authority may have regard are those set out in s.45 of the Act. These are very specific to the licensee personally, the particular conditions of the off-licence, and the way in which it has been operated.

The most relevant matter raised by Dr Bowker was his occupation. There is no doubt that in general terms Dr Bowker’s occupation does give him an interest in liquor abuse which is greater than that of the public generally. However, that is not the test. The test is that he must have a greater interest than the public generally in the application which seeks the renewal of the licence. In that regard, a consideration of the criteria set out in s.45 is relevant and, as previously mentioned, this is very specific to the application for renewal. When one considers that the Authority is concerned simply with the application which seeks renewal of the off-licence and not with off-licences generally then it is not satisfied that in this case Dr Bowker can claim that he is a person who has a greater interest in the application than the public generally. Accordingly he did not have status to object to the application.”

In a memorandum dated 23 February 2011, Mr Bernard Teahan, Chief Executive Officer of Trust House Limited rebuts the concerns raised in Dr Palmer’s objection. He makes the point that the Masterton Licensing Trust (of which the applicant is the trading arm) has operated in the Wairarapa for over 60 years. The applicant contends that a strong case can be advanced that the Trust has been a responsible seller in all of that time with an underlying commitment to the support and well-being of the community.

Bullet point 4 of part 7.2 of the council’s policy document referred to earlier in this decision would appear to have particular relevance in these applications. On that basis, even had Dr Palmer been able to persuade us of his ‘greater interest’, his contention that the applicant is unsuitable is without foundation. Accordingly, we propose to deal with these applications 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 each of the off-licences on the existing terms and conditions until the appropriate dates extending three years from the most recent dates of expiry, and we authorise the issue of notices of renewal.

DATED at WELLINGTON this 1st day of April 2011

B M Holmes
Secretary

Masterton Off-licences.doc(ab)