Conifer Grove Wines [2012] NZLLA 922 (14 August 2012)

Last Updated: 24 August 2012

[2012] NZLLA PH 922

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by BAINS BROTHERS LIMITED for an off-licence pursuant to s.31 of the Act in respect of premises situated at 68c Walter Strevens Drive, Conifer Grove, Auckland, known as “Conifer Grove Wines”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PAPAKURA on 6 August 2012

APPEARANCES

Mr J D Young – for applicant
Mr A Wilkinson – Auckland District Licensing Agency Inspector – to assist

Objectors
Mr D Futter
Mr J Robertson
Mr J van Wijk
Mr C Ardern
Mr C Penrose
Mr K Everitt

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Conifer Grove is a small suburb in South Auckland. It contains approximately 800 homes. It is surrounded on three sides by water. The main entrances to the area are from Great South Road which is the main arterial road linking Manukau with Papakura. It is a middle class suburb with well kept homes and gardens. It has a number of open grassy spaces. It is an enclave which is discrete from the wider South Auckland community.

[2] Roughly in the centre of the suburb is a shopping centre. In the centre of the shopping centre there is a large carpark. The shops surround the car park. Thus, most of the shops are separated from Walter Strevens Drive by the car park. When facing the shopping centre, to its left there is a grassy reserve. A pathway leads from Walter Strevens Drive through that reserve to a kindergarten. The balance of the area surrounding the shopping centre consists of the grounds of the local primary school. Beyond the school and across the road there is another grassy reserve area which leads to an inlet of the Manukau Harbour.

[3] The description of the area as being a quiet and peaceful suburb was confirmed by the Authority when it visited the area at approximately 3.45 pm on Monday 6 August 2012. The shopping centre, itself, was virtually deserted. The Authority noticed four school children leaving the dairy. There was virtually no foot traffic. Most of the shops seemed to have no customers.

[4] The applicant proposes to establish a bottle store in one of the shops within the shopping centre. He has obtained a lease of the proposed premises and the Lessor consents to their use as a bottle store. There are approximately seven shops between the proposed premises and Walter Strevens Drive. The shop that is the closest to Walter Strevens Drive is a dairy. A takeaway business is situated next to the proposed premises.

[5] There are two BYO restaurants in the shopping centre. In his evidence for the applicant, Mr Bains stated that the “New Flame Restaurant” is open from Wednesday to Sunday from 9.30 am to 3.00 pm and from 6.00 pm until 1.00 am the following day. When the Authority viewed the area, it noticed that the “New Flame Restaurant” advertised itself as closing at 9.00 pm. Perhaps its winter hours are different from those deposed to by Mr Bains. The other BYO restaurant in the shopping centre is “Thai Landing”. Mr Bains stated that this restaurant opens from Tuesday to Sunday from 9.00 am until 1.00 am the following day. The Authority noticed that it advertised itself as remaining open “until late”.

[6] The Inspector’s report noted that there are five other stand-alone bottle stores in the Takanini area and two supermarkets. None of those establishments are within a kilometre of the proposed premises.

[7] The requisite planning and building certificates were produced with the application. The proposed building and land use satisfy the requirements of the Building Act 2004 and the Resource Management Act 1991.

[8] The Inspector noted when she walked within the shopping centre that it was not possible for students from the school to cut through from the school to the shops. There was no need for students to pass the proposed premises to get to the dairy and that was the only shop that she would have had concerns with in regard to minors. The Inspector’s observations were confirmed by those of the Authority.

The Application

[9] The applicant has one director and shareholder. He is Tara Singh. The applicant holds a liquor licence in respect of another bottle store, “Finlayson Liquor” in the Manukau area. Prior to establishing the “Finlayson Liquor” business, Mr Singh held a licence for “Rata Vine Superette” and it seems that some problems arose in respect of the operation of that business in 2007, some five years ago. There is no evidence of any further transgressions against the Act since then.

[10] The applicant originally sought hours for the sale of liquor from Monday to Sunday from 9.00 am to 11.00 pm. At the hearing the proposed hours for operating the business were amended. It is proposed that the licence should contain the following condition:

“Liquor may be sold on the following days and during the following hours:

During Conifer Grove School’s term:

Monday to Tuesday 9.00 am to 3.00 pm and 3.30 pm to 8.30 pm

Wednesday to Friday 9.00 am to 3.00 pm and 3.30 pm to 10.00 pm

Saturday 9.00 am to 10.00 pm

Sunday 9.00 am to 8.30 pm

On all other occasions:

Sunday to Tuesday 9.00 am to 8.30 pm

Wednesday to Saturday 9.00 am to 10.00 pm

No liquor shall be sold on Good Friday, Easter Sunday, Christmas Day or before 1.00 pm on Anzac Day.”

[11] The applicant appreciates the need to communicate with the school to ensure that it correctly understands the school terms for any given year.

[12] The applicant seeks to designate the premises as a supervised area. This is an appropriate designation for the proposed business.

[13] In his evidence for the applicant, Mr Bains, who is the intended general manager of the proposed store stated:

“We will be targeting the upmarket residents of Conifer Grove with a range of fine wine and spirits. We will be concentrating on quality wines at Conifer mostly in the $15 to $30 price range. More than 60 percent of our floor space will be solely devoted to wine. We will not be promoting discount alcohol.

We have been in discussions with Pernod Ricard to align ourselves with them as our primary supplier. Some of the wines we intend to stock at Conifer include Church Road and the Festival Block range.

We are also looking to Eurovintage to supply fine whiskies from Spain, Holland and Scotland”

[14] The applicant advised the Authority that essentially the proposal was to establish an operation similar to “Glengary’s Wine and Spirit” business. It is intended that some RTDs will be stocked. However, all RTDs will be kept on the bottom shelf of the chiller. There will be no advertising of RTD products. There will be no sales of single cans or bottles of beer or RTDS.

Reporting Agencies

[15] Neither the Police, nor the Inspector oppose the application.

Objections

[16] The reason that a public hearing was necessary in respect of this application is that the Auckland District Licensing Agency received 667 individual objections to the application. Most of the objections were contained in various petitions which had circulated within the Conifer Grove area.

[17] Whilst some of the objectors had no status in terms of s.32(1) of the Act, the applicant elected not to challenge objections on that ground.

[18] Fifty objectors appeared at the hearing. It is impractical to record their names in this decision. However, of those 50 objectors, six gave evidence. Their names are recorded.

[19] It is not intended to set out in extenso all their evidence. The points made by them can be summarised as follows:

• Too many outlets in the vicinity.
• Introduces clientele which puts children/parents/caregivers at risk.
• Clientele could threaten security and freedom of residents/property/lifestyle/parks and businesses.
• Hours are outside the culture of this residential area.
• Additions to noise level and traffic flow volumes.
• Mischievous loitering in the shopping centre.
• Increased litter around the area.
• Increased graffiti and people drinking at the reserves and robberies.
• Too close to a kindergarten, a primary and intermediate school and a children’s play area for kids’ safety.
• Increase in serious criminal activity enhanced.
• Non suitability of applicant as he’s been suspended before for selling liquor and cigarettes to minors.
• Less alcohol rather than more enhances family values.
• High number of alcohol related issues in the community.
• Not sound business proposition, locals will not support – two similar businesses have been in the shopping centre and failed.
• No toilets so cleaning costs will increase.
• Previous licence has been opposed – surprised and annoyed this can be looked at again.
• Products to be sold include party pills, and high alcohol content RTDs.
• Concentration of liquor outlets in low deprivation areas.
  

[20] One objector, Mr Futter, summarised the sentiments of the various objectors when he said:

“I understand that somewhere around 786 objections have been raised already. Most of these will come from local residents. We are the ones who live in the area. As a democracy surely our voice needs to be heard and listened to. I am mindful of the events in the Middle East over recent times when over a long period of time the voices of the people have not been heard and the civil unrest and mayhem that has resulted. Whilst I am not advocating the same actions here it must serve as a reminder to those who pass the laws of the land that they are elected to carry out the wishes of the people. We are the ones who will have to live with the outcomes and I am concerned of the problems of still more drinking in our community, anti-social behaviour by those purchasing liquor particularly late at night and the repercussions upon our children and community.”

Legal Considerations

[21] In considering an application for an off-licence the Authority is directed by s.35(1) of the Act to have regard to the following criteria:

(a) The suitability of the applicant;

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

(c) The areas of the premises, 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) Whether the applicant is engaged, or proposes to engage in

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

(ii) The provision of any services other than those directly related to the sale or supply of liquor, -

and if so, the nature of those goods or services;

(f) Any matters dealt with in any report made under section 33 of this Act.

[22] Recent decisions such as My Noodle Limited [2009] NZCA 564, Wells Instrument and Electrical Limited v Shree Sai Holdings (Levin) Limited CIV 2011-443-000050, and Otara-Papatoetoe Local Board v Joban Enterprises Limited CIV 2011-404-007930; [2012] NZHC 1406, to some extent, have clarified the applicable legal considerations as follows:

• [a] The Authority is required to undertake an evaluative exercise when determining applications for off-licences. This involves a consideration of:
  
  • The criteria set out in s.35(1) of the Act;
    
  • The reports presented by the Police and Inspector;
    
  • Public objections that are directed to the s.35(1) criteria.
    

[b] Then the Authority needs to stand back and determine whether the application should be granted or refused. This involves forming a view as to whether there is evidence to suggest that the granting of the application will be contrary to s.4(1) of the Act; viz. will increase the risk of liquor abuse.

[c] A causal nexus is required between the evidence and risk of liquor abuse;

[d] Section 32(3) of the Act requires that objections must be confined to the criteria specified in s.35(1) of the Act;

[e] Evidence relating to the risk of liquor abuse will usually come from the reports and evidence of the Police and Inspectors;

[f] When considering the evidence relating to the criteria set out in s.35(1)(a) of the Act, the object of the Act as set out in s.4(1) can be relevant. This does not denigrate from the test of suitability as explained in Sheard (HC) Christchurch AP 119/95, 29 November 1995 per Holland J when he stated:

“The real test is whether the character of the applicant has been shown to be such that he is not likely to carry out properly the responsibilities that go with the holding a licence.”

[23] Those responsibilities arise not only from the specific statutory obligations, e.g. preventing intoxication on premises, but also from s.4 of the Act and the object of contributing to the reduction of liquor abuse.

[24] As suggested by Heath J in Otara-Papatoetoe Local Board v Joban Enterprises Limited (supra) it is useful if the reports and evidence of the reporting agencies make reference to the object of the Act.

[25] The statute and case law are very specific as to the role of objectors:

• [a] Only people who have a greater interest in the application and the public generally can object (see s.32(1) of the Act);
  
• [b] Pursuant to s.32(3) of the Act, they can only object in relation to one or more of the criteria set out in s.35(1) of the Act;
  
• [c] If objectors fail to appear it is likely that their objection will have no value. If they do appear but fail to address the criteria set out in s.35(1) of the Act their objection has little probative value;
  
• [d] Any objection that refers to the prejudicial effect that a grant of licence may have on other licensed premises will not be taken into account (see s.35(2) of the Act);
  
• [e] Objections referring to the proliferation of liquor outlets do not come within the criteria set out in s.35(1) of the Act.
  

[26] It follows from this analysis the Authority cannot base its decision on the will of the people. The fact that a new bottle store is unwelcome in a community is not a ground for refusing to grant an off-licence. Thus, the number of objections is not a relevant consideration: Liquor World Limited NZLLA PH 1189/2009.

[27] Some other principles (which are referred to in Liquor World Limited (supra) ) are :

• [a] In fixing trading hours and days the Authority may have regard to the site and the premises in relation to neighbouring land use (see s.37(5) of the Act);
  
• [b] When fixing trading hours and days for new licences, a conservative or precautionary approach is adopted. This is particularly so where there is no trading history;
  
• [c] The establishment of a new bottle store or other off-licence often impacts adversely on the neighbouring amenities and way of life. This can sometimes be addressed by fixing appropriate conditions to the licence;
  
• [d] A new licence is issued for a period of one year. This is known in the industry as “the probationary year”. This gives objectors and the reporting agencies the opportunity to monitor the store to see exactly what sort of business develops. If concerns are realised, then there is power for the Authority to refuse to renew the licence or alter its conditions;
  
• [e] A certificate under the Resource Management Act 1991 covers issues such as the use of the premises, parking, traffic and the suitability of location. These are not matters for the Authority to consider;
  
• [f] From the foregoing it will be observed that the provisions of the Act dictate how the Authority reaches a decision.
  

Decision of Authority and Reasons

[28] There is an obligation on the applicant to establish its suitability. The Authority has stated that in the absence of unfavourable comment from the reporting agencies, it is unlikely to be persuaded that an applicant is unsuitable: British Isles Inn Limited NZLLA PH 406/2006 at paragraph [30]. Whilst some of the objectors referred to a 2007 incident, no objector seriously challenged the suitability of the applicant.

[29] Under the head of “suitability” some objectors raised the possibility that the business might not be viable. There is no suggestion that the applicant, itself, lacks sufficient funds to operate the business. Indeed, the Inspector has noted in her report that the applicant expects business to be slow in the early stages of its operation.

[30] The Authority concludes that the applicant is suitable.

[31] There are no adverse comments from the reporting agencies.

[32] When considering the various legal criteria set out in paragraphs [21] to [26], it is evident that very few of the concerns raised by the objectors are matters they were entitled to raise: s.32(3) of the Act.

[33] There is no causal nexus between the establishment of a bottle store in these premises and the perceived adverse social effects suggested by the objectors.

[34] The final issue arising from the objections is the hours of operation of the premises. In considering this matter, s.4 considerations arise. Likewise s.37(5) of the Act applies.

[35] The applicant responsibly has amended its hours of operation to take into account the movement of school children in the vicinity. Some of the objectors questioned the applicant as to pupils from Strathallen College and Rosehill College frequenting the shopping centre. Mr Bains was unable to comment on their presence in the shopping centre. None of the objectors produced any evidence that this might be a problem.

[36] It seems that the only reason that the applicant wishes to remain open on Wednesday to Saturday until 10.00 pm is that it expects some custom to arise from patrons of the two BYO restaurants in the shopping centre. This desire needs to be tempered by the reasoning expressed in Chiman D Patel [2012] NZLLA PH 570-571. In that case, it was clear that a bottle store which did not close until midnight and which was situated in a residential area was encouraging liquor abuse. As a result, the Authority curtailed its hours significantly. In this case, that evidence does not exist. The Inspector thought that it was unlikely that these premises would attract undesirable elements such as those referred to in Chiman D Patel. The sophisticated nature of the proposed bottle store is unlikely to attract undesirable elements. Nevertheless, the premises are situated in a quiet residential area and the Authority needs to take a precautionary attitude towards trading hours when considering bottle stores in quiet residential areas. In the circumstances, the Authority concludes that, whilst the risk of problems is not great, it is appropriate that the premises close at 9.00 pm at the latest.

[37] The application is granted. The proposed hours of operation are those as suggested by the applicant in para [10] of this decision except that the premises will be required to close for the sale and supply of liquor at 9.00 pm each Wednesday, Thursday, Friday and Saturday.

[37] 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.

[38] The applicant’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 of the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through each principal entrance; and

(c) A sign prominently displayed inside the premises, which identifies by name the manager for the time being on duty.

DATED at WELLINGTON this 14th day of August 2012

B M Holmes
Secretary

Conifer Grove Wines.doc(aw)