Super Liquor Waiuku [2012] NZLLA 722 (26 June 2012)

Last Updated: 19 July 2012

[2012] NZLLA PH 722

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by GREAT JAUNT LIMITED for an off-licence pursuant to s.31 of the Act in respect of premises situated at 7 Leonard Street, Waiuku, Auckland, known as “Super Liquor Waiuku”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PUKEKOHE on 12 June 2012

APPEARANCES

Mr D P Hoskin – for applicant
Mr A Wilkinson – Auckland District Licensing Agency Inspector – to assist

Objectors
Mr G Knight (representing Waiuku Family Support)
Mr T J Vanderlaan

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to an application for an off-licence in respect of premises at 7 Leonard Street, Waiuku known as “Super Liquor Waiuku”. It is intended that the business will trade as a bottle store. The hours sought for the sale of liquor are between 10.00 am and 10.00 pm daily.

[2] Neither the Police nor the Inspector oppose the application. Indeed, in her evidence, the Inspector noted that the applicant (which also owns “Tuakau Liquor Centre”) is an experienced operator who has not come to the adverse attention of the enforcement agencies. She considered the applicant to be an example of exemplary management within the industry. There have been no complaints about the way the “Tuakau Liquor Centre” is operated and there have been no failed controlled purchase operations.

[3] If this application is granted, the premises at 7 Leonard Road, Waiuku will constitute a large stand alone bottle store. The applicant has leased the premises for a term of three years with seven rights of renewal. The lease is conditional upon the grant of this application. The applicant has indicated that the “Tuakau Liquor Centre” is designated as restricted. The Inspector has no objection to these premises being designated as restricted which seems appropriate in the circumstances.

[4] Whilst the application was publicly notified, the number of days between the first and second publication of the notice amounted to 13 days. In these circumstances an application has been made to waive the irregularity in accordance with s.111 of the Act. The irregularity is waived accordingly.

[5] The proposed trading hours of 10.00 am to 10.00 pm each day mirror the hours granted in the planning certificate. Further, they align with those stated in the Franklin District Alcohol Policy (2009) which remains in force.

Objections

[6] Twelve notices of objection were filed together with a petition containing approximately 469 signatures. The Authority gives little weight to the opinions contained in objections and petitions where their authors fail to give evidence at a hearing as their statements cannot be tested by cross examination. The general tenor of the petition and most objections was that a further bottle store at Waiuku will increase antisocial behaviour, increase front loading and lead to the excessive consumption of liquor. In short, it was suggested that an additional bottle store at Waiuku would not be in accordance with the object of the Act as set out in s.4 of the Act.

[7] Only two objectors appeared at the hearing. Mr Knight, representing Waiuku Family Support Network outlined the incidence of domestic violence in Waiuku noting that most incidents result from liquor abuse. He stated that between two and seven cases involving family violence are reported to the Police each week in Waiuku. He asserted that an additional bottle store would lead to an increase in the number of people drinking which would therefore lead to increased harm.

[8] The other material objection was from Mr Vanderlaan. He is the principal of Waiuku College which is the secondary school serving Waiuku and its surrounding area. He stated that between 60 percent and 70 percent of college students would walk past the proposed site daily. He was concerned that they would be influenced by external advertising associated with the business. The College is situated 300 metres from the proposed bottle store although a few students are able to leave the College through a side access which is approximately 150 metres from the proposed bottle store. Apparently students regularly visit the centre of Waiuku in order to congregate and to obtain food. He was concerned that the proposed bottle store would give the students an increased opportunity to obtain alcohol. He noted that Waiuku College is not included in the liquor ban which covers a relatively large portion of the Waiuku village including Leonard Street, but not the proposed premises. Research has indicated that Waiuku College students are inclined to commence drinking alcohol at an earlier age than is the national average. Further, they seem to drink more. Senior students in their final year at the college are able to attend the College and visit the town without wearing school uniforms. Further, some students are able to obtain liquor from older students. About 40 percent of the students arrive at the college by bus. The buses leave the College between 3.20 pm and 3.50 pm. It is not uncommon for the later bus students to walk along Leonard Street in order to visit the “New World Supermarket” (across the road from the proposed premises) and other food dispensing establishments. Mr Vanderlaan acknowledged that students can be expected in the area of the proposed bottle store from about 3.20 pm until about 6.00 pm each school day: thus, closing the proposed bottle store for a relatively short period of time during the afternoon could well be unreasonable in the circumstances. He recognised that his concerns resulted from his anticipation of potential risks associated with the bottle store. He had no direct evidence to support his submissions as to the anticipated risk posed by the proposed premises and, indeed, recognised that the existing bottle stores in the town (with which a good relationship with the College has developed) pose few problems for college students. He thought that it was possible that a similar relationship with the proposed licensee could develop.

Authority’s View

[9] On 13 June 2012 the Authority inspected the site of the proposed premises and its environs. Leonard Street is not the principal shopping street in Waiku. That privilege belongs to Queen Street. However, opposite the proposed premises is the relatively new “New World Supermarket” and its parking area. When facing the proposed bottle store there is an electrical store and workshop to the left and a retail storage facility to the right.

[10] Waiuku College is situated on Constable Road near the town border. Students wishing to visit the “New World Supermarket” and other food dispensing shops in the town would normally walk from the college along Constable Road generally in a northerly direction. Just before the intersection of Constable Road and Leonard Street there is a pedestrian crossing. It would be reasonable to expect students to cross Constable Road using the pedestrian crossing and then walk along Leonard Street in an easterly direction on the southern footpath. However, before the students reach the proposed bottle store (which is on the southern side of Leonard Street) it may be anticipated that the students would then cross Leonard Street (probably in a diagonal fashion) and enter the “New World Supermarket”. They would then either enter the “New World Supermarket” or alternatively cut across its parking area into Bowen Street and then into Queen Street. Whilst the Authority did not see the students moving in this way (as the inspection took place during the mid morning) the Authority’s conjecture seems to mirror the evidence.

[11] The proposed bottle store premises are set back from the edge of Leonard Street by approximately 22 metres. Assuming the college students cross Leonard Street before arriving at the proposed bottle store or even if they pass directly in front of the proposed premises, then they would usually have their backs to the proposed bottle store whilst crossing the street and entering the “New World Supermarket” parking area. When returning to the college, the proposed bottle store would be to their left and they would not pass directly in front of it. The fact that the proposed premises are set back from the road means that they would not be “in the face” of the students either when leaving the College or returning to it. In addition, part of the yard in front of the proposed premises contains two side walls which would also have some effect in deflecting the attention of the students away from the proposed premises.

Authority’s Decision and Reasons

[12] At paragraph [31] of the judgment in Otara-Papatoetoe Local Board v Joban Enterprises Limited CIV 2011-404-007930; [2012] NZHC 1406 the High Court postulated an appropriate approach to be taken by the Authority when considering an application for an off-licence. It should consider: the s.35(1) criteria; the Police and Inspector’s reports (which should refer to both the s.35(1) criteria and the extent the granting of an application might offend against the object of the Act in reducing liquor abuse); and public objections that are directed to the s.35(1) criteria. Then it needs to step back and determine if there is evidence that the granting of the application might be contrary to the statutory object. A causal nexus is required between such evidence and the risk.

[13] In this case the application meets the s.35(1) criteria. Neither the Police nor the Inspector have raised any opposition based on the statutory criteria or liquor abuse grounds. Whilst the evidence of both Mr Knight and Mr Vanderlaan was not specifically directed to the s.35(1) criteria, it did suggest that liquor abuse problems will arise from the grant of the application. However, the Authority is not convinced.

[14] The addition of any bottle store to a town inevitably makes liquor more readily available to its inhabitants. That does not necessarily mean that there will be an increase in liquor abuse. It does not automatically follow that more liquor per capita of the town’s population will be consumed.

[15] The Authority’s inspection indicates that the potential risk to the Waiuku College students is not great.

[16] The restricted designation will assist in minimising the risk of possible liquor abuse as will the liquor ban in the vicinity.

[17] Finally, but importantly, the applicant is eminently suitable to hold the licence and deal with any potential liquor abuse problems that might arise.

[18] The proposed hours of operation accord with the Franklin District Liquor Policy and are reasonable in a small urban area. Section 37(4) of the Act authorises the Authority to impose various conditions. In this case, the only relevant matter in respect of which conditions could be imposed relates to the days on which and the hours during which liquor may be sold or delivered. Section 37(5) of the Act states that when imposing any condition in respect of this matter the Authority may have regard to the site of the premises in relation to neighbouring land use.

[19] Mr Vanderlaan’s evidence suggests that the Authority should consider whether or not it should impose a condition requiring the premises to be closed when Waiuku College students are in its vicinity. This was done in Imperial Discount Liquor Limited [2012] NZLLA PH 242 and in Vishal Holdings Limited NZLLA PH 1261/2009, for example.

[20] Mr Vanderlaan fairly conceded that Waiuku College students could be expected to be in the vicinity of the bottle store before it intends to open and (relevantly) from 3.20 pm until about 6.00 pm on days when the College is operating. However, the greatest influx of students would be from between 3.20 pm and 4.00 pm. As explained in this decision earlier, from the Authority’s view of the proposed premises and its environs, the factual situation is different from that which pertained in either of the cases referred to in paragraph [19], or indeed, any other similar case coming before the Authority. Accordingly, the Authority concludes that there is no necessity for it to apply the “precautionary principle” and require the premises to be closed for a short period during the afternoons when Waiku College students might be in the area. The premises are sufficiently remote from where the students are likely to be to make such a condition unnecessary. However, if the licensee fails to operate the premises in a discreet fashion and takes steps to put the proposed bottle store “in the face” of the passing students, then this is a matter which could be taken into account when the off-licence becomes due for renewal in one year’s time.

Conclusion

[21] The application is granted.

[22] 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.

[23] The company’s attention is drawn to ss.48 and 115(3) of the Act obliging the holder of an off-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 26th day of June 2012

B M Holmes
Secretary

Super Liquor Waiuku.doc(aw)