Serafin [2011] NZLLA 480 (2 June 2011)

Last Updated: 29 June 2011

[2011] NZLLA PH 480

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by BUENO’S KITCHEN LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at 225B Dominion Road, Mt Eden, Auckland, known as “Serafin”

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at AUCKLAND on 17 May 2011
Memorandum of counsel for the applicant received 20 May 2011

APPEARANCES

Mr J D Young – on behalf of applicant
Sergeant J P Loye – NZ Police – to assist
Mr A Phillips – Auckland District Licensing Agency Inspector – to assist
Mr H J Watt – objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] The applicant has applied for an on-licence for premises at 225B Dominion Road, Mt Eden, Auckland. The applicant recently opened a restaurant at the premises and wishes to have an on-licence to enable it to sell liquor in conjunction with Spanish tapas style food.

[2] In its application the applicant sought to sell liquor pursuant to the licence from Monday to Sunday 7.00 am to 10.00 pm (subject to certain resource consent conditions).

[3] Advertising attracted an objection from neighbouring residents who live in close proximity to the proposed licensed premises. The objectors raised concerns in relation to parking issues, potential for noise, proliferation of liquor licences and a suggestion that they have been misled by council in relation to the purposes for which the site was to be used. It was also contended that the hours sought are excessive.

[4] In accordance with s.106(2) we are required to convene a public hearing where an objection has been filed unless it is withdrawn, vexatious, based on grounds outside the scope of the Act or the objector does not require a public hearing. While the objection in this case referred to matters that are outside those we may consider, it also referred to hours and raised matters of suitability. These are matters within the criteria set out in the Act. The application was accordingly set down to be determined at a public hearing. The applicant requested urgency in regard to the hearing.

The application

[5] We heard from Mr William Arthur Endean who is the director of Waitemata Trust Limited. The trust owns the property at 219-225 Dominion Road. Mr Endean gave evidence regarding the establishment of the restaurant and of obtaining resource consent. The property was purchased as a derelict building which has recently been renovated and the new restaurant space added at the rear of the building. The property is zoned Business 2 whilst the properties on Walters Road and Cromwell Street are residentially zoned.

[6] Mr Endean said that the trust had wished to attract a licensed café/restaurant as a tenant and resource consent was obtained for this purpose. The resource consent imposes certain conditions to address possible noise issues in relation to operating hours, the use of outdoor areas and the collection and disposal of rubbish. Mr Endean gave evidence that the café has been specifically designed to contain a courtyard behind concrete walls to minimise noise. An acoustic report had also been sought as part of the development of the project.

[7] The resource consent permits the following hours of operation:

• The café - Monday to Sunday (excluding public holidays) 7.00 am -10.00 pm
  
• Outdoor seating area adjacent to Walters road - Monday to Saturday 7.00 am -10.00 pm; Sunday’s and public holidays 9.00 am to 6.00 pm

[8] The resource consent also provides that the southern bi-fold doors shall only be open Monday to Saturday 7.00 am to 10.00 pm and Sundays and public holidays 9.00 am to 6.00 pm.

[9] Mr Serafin Bueno Sanz is a director of the applicant company. He is a chef by trade and has extensive experience in the hospitality industry. He gave evidence that he has worked in some of the world’s finest restaurants in London, Spain, Melbourne and Auckland over the last 20 years.

[10] Mr Sanz said that the emphasis at Serafin is on authentic Spanish food. Two other chefs have been employed, both of whom are also co-directors and shareholders in the company. The wine list is to feature Spanish wines. It is intended to serve wine and beer but no spirits or liqueurs. He said that the focus was to be on food and that he did not want to operate as a bar or tavern.

[11] In relation to noise, Mr Sanz pointed out that he only wished to trade until 10.00 pm and that they do not have live music. There is a small sound system to play background ambient music.

[12] Mr Sanz said that he was disappointed that there had been an objection to the application which had created uncertainty for the company. Finally Mr Sanz supplied supporting letters and signatures from residents in the surrounding area in support of the liquor licence application.

Objection

[13] At the hearing, Mr Watt represented both himself and Ms Turner. They live 50-60 metres from the premises, across Walters Road in Cromwell Street, and have lived there for more than 18 years. We are satisfied that they have “a greater interest in the application than the public generally” which is the test set out in s.10(1) of the Act. This was not challenged by the applicant at the hearing.

[14] It was suggested by the objectors that there were building and resource management issues. These are matters for the Council and not this Authority. A Resource Management Certificate was issued on 12 November 2010 in accordance with s.9(1)(e) of the Act and a final Building Code Compliance Certificate issued on 15 March 2011. It is not for this Authority to look beyond the certificates.

[15] While the original objection listed several matters of concern, at the hearing the objectors acknowledged that many of the concerns raised were not grounds upon which they could object to this application. They confined their objection to the suitability of the applicant and the days and hours which the applicant can sell alcohol.

[16] The objectors challenge the suitability of the applicant. They expressed concern at being approached by the applicant. They were also concerned at the publicity that followed their objection, believing it to have been instigated by the applicant. They saw this as “bullying” behaviour. They also felt that they had been told “untruths” by the applicant.

[17] In regard to the hours sought the objectors submitted that the hours of 7.00 am -10.00 pm seven days a week are unreasonable in a residential area. They submitted that the hours for the courtyard areas should be confined to daytime hours and reduced to 11.00 am to 5.00 pm and the hours for the interior of the premises be reduced to 11.00 am to 9.00 pm.

The agencies

[18] Neither the Police, Medical Officer of Health nor Inspector opposed the application.

Decision of the Authority and reasons

[19] In considering any application for an on-licence the criteria to which we must have regard are listed in s.13(1) of the Act. These are also the grounds for any objection.

[20] Section 10(3) of the Act states:

No objection may be made in relation to any matter other than one specified in section 13(1) of this Act.

[21] Section 13(1) reads:

In considering any application for an on-licence, the Licensing Authority or District Licensing Agency, as the case may be, must have regard to the following matters:

(a) The suitability of the applicant:

(b) The days on which and the hours during which the applicant proposes to sell liquor:

(c) The areas of the premises or conveyance, if any, that the applicant proposes should be designated as restricted areas or supervised areas:

(d) The steps proposed to be taken by the applicant to ensure that the requirements of this Act in relation to the sale of liquor to prohibited persons are observed:

(e) The applicant's proposals relating to –

(i) The sale and supply of non-alcoholic refreshments and food; and

(ii) The sale and supply of low-alcohol beverages; and (iii) The provision of assistance with or information about alternative forms of transport from the licensed premises:

(f) Whether the applicant is engaged, or proposes to engage, in –

(i) The sale or supply of any other goods besides liquor and food; or

(ii) The provision of any services other than those directly related to the sale or supply of liquor and food, - and if so, the nature of those goods or services:

(g) Any matters dealt with in any report made under section 11 of this Act.

[22] The matters we are mainly concerned with are the grounds raised by the objectors set out in s13(1)(a) suitability and (b) hours. Significantly, none of the Agencies oppose this application and in those circumstances to impugn the applicant’s suitability presents difficulties for the objectors.

[23] The objectors complained that the applicant had approached them to discuss the issue. The innuendo was that this was an unfair practice. It is not. In fact, the Authority has commended the process whereby applicants seek to negotiate with neighbours and objectors to reach a compromise on the proposed hours of operation. As for what was said and whether it was true or not, we simply do not have sufficient information to make any assessment either way.

[24] The objectors were also concerned at the publicity engendered in relation to the application and more particularly their objection. While the process provided for by the Act is by its nature a public one, it was unfortunate that the applicant saw fit to display the material. It was however removed and Mr Serafin denied contacting the media. In the circumstances we are not persuaded that the applicant is unsuitable.

[25] From the objectors submissions, it was apparent that the real concern was that the premises would be converted into a tavern. The hours sought by the applicant, however, indicate very clearly that the applicant intends to sell liquor during somewhat restricted hours from Monday to Sunday 7.00 am to 10.00 pm. These are not the hours normally associated with a tavern. The evils that the objectors perceive as being associated with taverns generally, are unlikely to occur in respect of these premises with the hours sought.

[26] The objectors asked us to consider restricting the hours further. We consider that the proposed hours, which are in accordance with the resource consent, have sufficiently taken into account neighbouring land use in terms of s.14(7) of the Act.

[27] Any licence issued pursuant to this decision will be for a probationary period of one year. If the fears of the objectors are realised then it can be raised when an application for the renewal of the licence is filed and advertised.

[28] For the sake of completeness we record that at the hearing the Authority made inquiries in regard to the proposed managers for the premises. The application had stated that Ming (Gordon) Kong, one of the directors, was to be the manager with “details to be provided”. Subsequent to the hearing we received a memorandum from counsel for the applicant advising that it had emerged that Mr Kong’s General Manager’s Certificate had inadvertently not been renewed. We were advised that Mr Kong intended to lodge a fresh application but that in the interim two other General Manager’s Certificate holders had been employed on a casual basis. Mr Sanz also intends to obtain a General Manager’s Certificate in due course.

[29] The Authority has had regard to all the matters set out in s.13(1) of the Act. We are satisfied that the applicant meets the criteria and the application for an on-licence is granted. The premises will be undesignated. The licence will not issue until the expiry of 20 working days from the date of this decision. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal.

[30] The company’s attention is drawn to ss.25 and 115(3) of the Act obliging the holder of an on-licence to display:

• [a] A sign attached to the exterior of the premises so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor; and
  
• [b] A copy of the licence, and the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through the principal entrance; and
  
• [c] The name of the duty manager placed inside the premises so as to be easily read by persons using the premises.
  

DATED at WELLINGTON this 2ND day of June 2011

Maria Galvin
Deputy Secretary

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