Pukerua Bay Store [2012] NZLLA 595 (29 May 2012)

Last Updated: 5 July 2012

[2012] NZLLA PH 595

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by NAGINBHAI NATHUBHAI PATEL and SUMITRABEN NAGINBHAI PATEL trading in partnership, pursuant to s.41 of the Act for renewal of an off-licence in respect of premises situated at 6C Teihana Road, Pukerua Bay, Porirua known as “Pukerua Bay Store”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 3 May 2012

APPEARANCES

Mr N S P Laing and Mr J K Scragg – for applicant
Senior Sergeant S D Sargent – NZ Police – in opposition
Mr C A Pike – Porirua District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to an application for the renewal of an off-licence in respect of premises situated at 6C Teihana Road, Pukerua Bay, known as “Pukerua Bay Store”.

[2] Initially the application was brought upon the basis that the business qualified for an off-licence pursuant to s.36(1)(d)(ii) of the Act. It was contended that the principal business of the store was the sale of main order household foodstuff requirements. At the initial hearing of the application on 29 November 2011 it transpired that there was insufficient evidence that the business qualified for an off-licence in terms of s.36(1)(d)(ii) of the Act. However, it seemed that the applicant might qualify for an off-licence in terms of s.36(2)(a) of the Act.

[3] Section 36(2) (as it applies to this application) reads:

The Licensing Authority [or District Licensing Agency as the case may be] may grant an off-licence in respect of any other premises if the Licensing Authority [or District Licensing Agency, as the case may be] is satisfied, in a particular case, -

(a) That, in the area in which the premises are situated, the sale of liquor in premises of a kind described in (c) or paragraph (d) of subsection (1) of this section would not be economic;

[4] The types of business referred to in s.36(2)(a) of the Act are premises in which the principal business is either the manufacture or sale of liquor; or any supermarket (as defined in s.36(1)(d)(i) of the Act); or any grocery store as defined in s.36(1)(d)(ii) of the Act. For the purposes of this application, the type of premises to which the section relates are not a bottle store, or a supermarket, or a grocery.

[5] Section 36(3) of the Act provides that in such a case an off-licence cannot be granted in respect of “any shop of a kind commonly known as a dairy”.

[6] No issue is raised as to the suitability of the applicant. The only issue is whether the premises qualify for an off-licence.

[7] The Police opposed the application. The Inspector, in whose domain this issue fairly sits, chose merely to assist the Authority and take no part in the proceedings.

The Authority’s Decision and Reasons

[8] The Authority agrees with the applicant’s submission to the effect that a proper approach to the determination of this matter is to apply a three stage test. First the Authority needs to determine the area in which the premises is situated. Then, having regard to that area, the Authority needs to be satisfied that a “stand alone” premises manufacturing or selling alcohol or a supermarket or grocery store (as defined by the Act) would not be economic; and finally, the Authority needs to determine that the store is not a shop of a kind commonly known as a diary.

[9] The Police considered that the “area in which the premises are situated” comprises not only Pukerua Bay, but the surrounding communities of Paekakariki, Plimmerton, Paremata and Porirua City. Essentially, so the Police claim, Pukerua Bay is a suburb of Porirua City.

[10] On the other hand, the applicant claims that Pukerua Bay is a discrete village and, for the purposes of s.36(2)(a) of the Act is not part and parcel of the larger area of Porirua City.

[11] If the Police are correct, then the premises would not qualify in terms of s.36(2)(a) of the Act.

[12] The Police contend that Pukerua Bay is very similar to Herald Island. In a decision of the Authority in respect of the “Herald Island General Store” [2011] NZLLA PH 1446, the Authority held that the area in which the “Herald Island General Store” was situated was not so discrete as to merely consist of Herald Island itself. In that case, whilst the residents of Herald Island considered themselves islanders first and Aucklanders second, Herald Island was linked to the mainland by a causeway which gave the islanders ready access to the surrounding communities.

[13] The evidence establishes that Pukerua Bay is different in that it is situated on a promontory abutting the Tasman Sea on the west coast of the North Island. Like Herald Island, it is regarded by the locals as a “village”. The size of the area, including the number of households in it and its population, is similar to Herald Island. Where Pukerua Bay differs from Herald Island is that it is cut off from the surrounding communities by a very busy State Highway One and a railway line.

[14] It is possible to travel by car to the surrounding communities. Likewise, if one is prepared to spend the time, it is possible to travel to the surrounding communities using the trains. There is a foot crossing from the railway station to Pukerua Bay.

[15] The Authority agrees with the submission of counsel for the applicant to the effect that in determining the area in which the premises is situated previous authorities such as “Okitio Store” NZLLA 2720/92, “Tirohanga Beach Store” NZLLA 186/96 and “Kawhia General Store” NZLLA 2824/95 indicate that regard should be had to such matters as the proximity to other townships, the area’s population, its relative isolation, and its access to other amenities.

[16] Of these criteria, in this case the small population of Pukerua Bay, its relative isolation (caused by the State Highway and the railway line), and its access to other amenities all favour a conclusion that the area contemplated by s.36(2)(a) of the Act is what is known as the “village” of Pukerua Bay.

[17] Accordingly, the Authority does not accept the Police position which essentially was that only isolated rural localities could qualify in terms of s.36(2)(a) of the Act. In some, very rare cases it is possible that an urban village might qualify: that is the case here.

[18] At paragraph 19 of the Police submissions, the Police concede that if the area is confined to the Pukerua Bay Village then the sale of liquor in premises of a kind described in paragraph (c) or (d) of subs.(1) of s.36 would not be economic.

[19] The final matter to be considered is whether or not the premises can be regarded as being of a kind commonly known as a dairy. At paragraph 8 of the Police submissions the Police stated that they did not accept that the premises were a grocery store “at best it is a dairy or possibly a convenience store. At the time of renewal the premises looked like a dairy, they called themselves a dairy and they were listed in the yellow pages as a dairy.”

[20] In “Starmart – The Crossing” NZLLA PH 1082-1083/2000 the Authority stated:

“It is for the District Licensing Agency’s and this Authority to determine each application on its own facts. A physical inspection of the premises in question often assists in distinguishing the small shop “of a kind commonly known as a dairy” where children regularly attend to purchase sweets, icecream and the like from the slightly larger and more widely stocked premises that will rate as a convenience store or superette”.

[21] In “Lake Hawea Store” [2010] NZLLA PH 1354 the Authority noted that the test under s.36(3)(b) of the Act requires a different enquiry to that under s.36(1)(d)(ii). The Authority stated at paragraph [14]:

“Most of the recent cases which have sought to differentiate between groceries convenience stores and dairies have concentrated on the definition contained in s.36(1)(d)(ii) of the Act where an enquiry is made as to whether the principal business of the store is the sale of main order household foodstuff requirements. When interpreting s.36(3)(b) of the Act, a different enquiry is required. It is to determine whether the shop can be “of a kind commonly known as a dairy””.

[22] In that decision the Authority found that dairy products sales comprised a relatively small proportion of the overall business. In this case, the applicant has provided figures which indicate that the sale of dairy products constitutes only about 10 percent of the total turnover of the store.

[23] Members of the Authority have inspected the premises. They conclude that the premises are more in the nature of a convenience store or small general store than a dairy. Thus, their observations support the small amount of business conducted on the premises which would comprise dairy products sales.

Conclusion

[24] The area in which the premises is situated comprises merely that portion of Pukerua Bay village to the western side of State Highway One.

[25] A stand alone liquor store, or a supermarket selling liquor or a grocery store selling liquor would not be economic in that area.

[26] The business is not of a kind commonly known as a dairy.

[27] Accordingly the premises qualify for an off-licence in terms of s.36 of the Act.

[28] No other matters were raised in opposition to the application and accordingly the application for the renewal of the off-licence is granted.

DATED at WELLINGTON this 29th day of May 2012

B M Holmes
Secretary

Pukerua Bay Store.doc(aw)