[2019] NZARLA 75 IN THE MATTER of the Sale and Supply of Alcohol Act 2012
AND
IN THE MATTER of an appeal pursuant to s 154 of the Act against a decision of the Wellington District Licensing Committee in respect of a new off- licence for premises situated at 102 Aro Street, Aro Valley, Wellington, to be known as “Aro Liquor”
BETWEEN PATELS SUPERETTE 2000 LIMITED Appellant
AND CHRISTOPHER JAMES MUIR (New Zealand Police) First Respondent
AND DR STEPHEN PALMER (Medical Officer of Health) Second Respondent
AND PHILMA (PHIL) THOMAS GREY WHELAN (Licensing Inspector) Third Respondent
AND DANIEL BROWN (TE ARO SCHOOL BOARD OF TRUSTEES), HILARY UNWIN (ARO VALLEY COMMUNITY CENTRE), MARIA CASSIDY, LUISA BELTRAN-CASTILLON (also representing KEITH McLEOD and A BROADHURST), PHILIP MAY, KEITH CLEMENT, and ANN CLARK (Objectors) Fourth Respondents
2
BEFORE THE ALCOHOL REGULATORY AND LICENSING AUTHORITY
Chairperson: District Court Judge K D Kelly Member: Mr D E Major
HEARING at WELLINGTON on 20 March and 12 April 2019
APPEARANCES Mr N S P Laing and Ms A Jones – for appellant Sgt C Muir – NZ Police – first respondent Dr S Palmer and Ms A Boston – second respondent Mr P Whelan and Mr L Howells – third respondent Mr A Sherriff – for fourth respondents
DECISION OF THE AUTHORITY
Introduction
[1] On 17 May 2018, following a four-day hearing, the Wellington District Licensing Committee (DLC) declined to grant an application for an off-licence to Patels Superette 2000 Limited (Patels) for a bottle store proposed to be established at 102 Aro Street, Aro Valley and to be known as ‘Aro Liquor’.
[2] The premises currently operate as a fruit and vegetable shop. Next door at 100 Aro Street is a grocery store also owned by Patels. The grocery store currently holds an off-licence1 which Patels proposes to surrender should an off-licence be issued for the proposed bottle store where at least 85% of its annual sales revenue is expected to be earned from the sale of alcohol.2
[3] The application was refused by the DLC on the basis that the suitability of the appellant was not able to be fully evaluated;3 the amenity and good order of the locality would likely be reduced by more than a minor extent by the issue of the licence;4 the days and hours during which Patels proposed to sell alcohol were excessive;5 and the object of the Act (s 4) would not be satisfied by the application.6
[4] On 31 May 2018, Patels appealed the decision of the DLC seeking an order from the Authority7 reversing the decision of the DLC and granting the licence ‘on terms that the Authority sees fit’.
1 per s 32(1)(f) 2 per s 32(1)(b) 3 DLC decision at [109] 4 DLC decision at [126] 5 DLC decision at [126] 6 DLC decision 49A/2018/NZWDLCWN/833 dated 17 May 2018 at [125] 7 pursuant to s 158 of the Act 3
Locality of the premises
[5] Given that the DLC considered that the amenity and good order of the locality would be reduced to more than a minor extent by the issue of the licence, it is useful to understand at the outset the nature of the locality. The DLC described the locality as follows:8
The Aro Valley is a discrete area giving onto the southernmost end of the Wellington CBD. The Committee has visited the area recently as part of the hearing process and noted its principally residential character. Restored, usually very small and closely set workers’ cottages of the 19th century still line parts of the street. There are more substantial residences of 2 or 3 storeys of the same and later eras mainly built on the adjacent slopes and streets which are arranged rather as tributaries to the main ‘stream’ which is Aro Street itself. Some of the housing, especially the more recent builds, appear to be purpose-built flats or apartments. It appears to be a fairly densely populated area with many houses up small accesses from the sides of streets. There are number of areas with only pedestrian access and almost all the streets are narrow.
On the northern side of Aro Street from Devon Street westwards the gradient is quite steep leading up to Kelburn and Victoria University. This is a recognised strongly student-oriented area with a large number of older houses rented as flats. On the southern side there are some gentler gradients in areas such as Epuni Street, which has number of suburban style dwellings, still fairly densely arranged. The valley’s eastern end gives onto Willis Street: on the corner there is a funeral home on the north side and the Shalimar Four Square (which holds an off licence) on the south; further south shortly beyond that intersection and curving back toward the valley is a site occupied by council housing (the Pukehinau Flats). At the western end of the valley is Holloway Road and the steep streets of Highbury and Mitchelltown, all of which are entirely residential areas.
The Aro Street commercial precinct is located toward the eastern, Willis Street end of the street. It comprises a small group of businesses mostly (but not all) housed in buildings dating back a century or so – there is a heritage precinct designation on most of this area. Amongst the businesses there are two licensed cafes (Aro Café and Rita’s), a craft brewery (The Garage Project) housed in a converted motor repairer/petrol station which has recently opened a cellar door/café in the heritage precinct, another bakery/café without licence, craft furniture maker, mountain bike store, the Aro Video store, a fish and chip shop, a Vinnie’s op shop (the building was for sale at the time of our visit), the Aro Valley Mini Mart, and the Garage Project main building. Everything else is aptly described as ‘boutique’ at least in size. Most of the stores open directly to the street, are highly individual, and there is no chain presence with the exception of the Four Square. There is, importantly, no physical separation from the residential area surrounding the business. The commercial precinct is one building deep along both sides of the street and people are living behind, beside and above those buildings. (The aerial photograph and map appended to Ms Boston’s evidence refer).
It is part of the evaluative exercise required of the committee to assess the ‘amenity and good order’ of the locality. In terms of amenity, we were able to identify that this (at least in daylight hours) is a very pleasant part of the city with its mixture of historic buildings, interesting and individual businesses, and open spaces – some steeper parts of the valley have been retained in bush, and there are a number of parks in the area, including Aro Park, a flat, grassy area with trees and benches
8 DLC decision at [8] – [11] 4
located toward the Willis Street end of the valley, which is used for community events (the community hall and local pre-school are adjacent).
[6] The Authority considers this to be an accurate description of the locality based on its familiarity with the area.
Ownership and management
[7] Mrs Manjulaben Patel is the sole shareholder of Patels.
[8] Mrs Patel and Mr Vinod Hira are the directors of Patels. Mr Hira became a director of Patels in 2015 after the death of Mrs Patel’s husband, having been involved in the preparation of the grocery store’s accounts since 2000.
[9] Both Mrs Patel and Mr Hira hold managers’ certificates. In addition, another staff member holds a manager’s certificate.
[10] Mrs Patel would be the hands-on operator of the premises. Mr Hira works fulltime as a network engineer for Capital & Coast DHB. Mr Hira said he also assists a friend with the operation of a liquor store in Dixon Street and stated before the DLC that he expects to be at the proposed Aro Liquor premises from 6.00 pm most evenings, and on weekends.9
[11] Neither Mrs Patel nor Mr Hira reside, or have resided, in Aro Valley.
Reporting agencies
Police
[12] By way of a letter dated 30 May 2017 Sergeant Chris Muir of the New Zealand Police opposed the application based on s 105(1)(h) of the Act (amenity and good order of the locality). Sergeant Muir said that:
Police believe the Amenity and Good Order … will decrease if the license were to be granted: The premises is located within the Wellington Liquor Ban area where there is already infringement notices for the consumption of alcohol with no bottle stores in the immediate area. This area has a high density of students who attend University. Traditionally University students are abusers of alcohol. This age group represent the highest at risk of alcohol related harm. Increasing the availability of an off-licence bottle store will provide easier access to alcohol.
Medical Officer of Health
[13] In his s 103 report dated 2 June 2017 Dr Stephen Palmer, the Medical Officer of Health and Clinical Head of Department for the Wellington Regional Public Health, opposed the application following inquiry by his delegate, Ms Andrea Boston, a Public Health Advisor.
[14] The Medical Officer of Health opposed the application based on the criteria in s 105(1)(a) of the Act (the object of the Act), s 105(1)(d) (the days and hours during which the applicant proposes to sell alcohol), s 105(1)(h) (amenity and good order of
9 DLC decision at [13] 5 the locality), and s 105(1)(j) (whether the applicant has appropriate systems, staff and training to comply with the law).
[15] The Medical Officer of Health is concerned that the application does not meet either limb of the object of the Act (s 4) and considers that “the increased availability of alcohol, including spirits, RTDs wine and beer in this vulnerable community increases the likelihood that the consumption of alcohol may not be undertaken safely and responsibly”. The Medical Officer of Health also considers that the issue of a licence “will not help minimise the harm caused by the excessive or inappropriate consumption of alcohol.”
[16] In his report, the Medical Officer of Health said that in making its application for a ‘full licence’ Patels has not fully considered the context of the location and the store’s likely clientele. The Medical Officer of Health considers that the neighbourhood and surrounding areas have very high levels of alcohol-related harm (ARH) caused by the excessive or inappropriate consumption of alcohol and that Patels has not adequately acknowledged the health concerns of the local population, nor has it sought to mitigate those concerns.
Licensing Inspector
[17] In his s 103 report dated 8 June 2017 the Licensing Inspector, Mr Phil Whelan, stated that he opposed the issue of the licence and that it was his view overall that the licence would not be consistent with the object of the Act.10
[18] Like the Police and Medical Officer of Health, the Licensing Inspector’s opposition is based on s 105(1)(a) and (h).
[19] The Inspector also opposes the application based on s 105(1)(i) of the Act, that is on the basis that the amenity and good order of the locality is already so badly affected by existing licences that it would unlikely be reduced any further (or only to a minor extent), but it is nevertheless desirable not to issue a licence. This aspect of the Inspector’s opposition is based on a previous decision of the DLC in relation to Patels application for an off-licence for its grocery store where in respect of the amenity and good order of the locality, the DLC previously said that it accepted without reservation that the community around the grocery store is a vulnerable one and is already badly affected by existing alcohol licences.11
[20] The Licensing Inspector is concerned that as the proposed dedicated bottle store has a significantly larger footprint than the grocery store, it is reasonable to assume that Patels will sell more alcohol, including spirits which have a higher concentration of alcohol by volume.
[21] The Inspector also notes that another grocery store directly across the street from the proposed bottle store has indicated that it would likely find it necessary to match Patels prices, raising the spectre of a ‘price war’. The Inspector noted, however, that Patels application states that it will be aimed at ‘premium customers’ and that its proposed operation would “not involve aggressive pricing to encourage consumption”.
10 s 103 report pages 1 and 2 11 DLC decision 49B/2017/NZDLCWN/102 at [53]-[54] - we note, however, that in respect of this previous decision the DLC here said that it has not relied on or adopted the findings of the previous DLC but has determined the application on the evidence before it (at [1]) 6
Objectors
[22] The application attracted 55 written objections from members of the public. Seven objectors appeared before the DLC including three who represented community groups or other objectors. The public objections raise broadly similar concerns about the object of the Act, the proposed hours of operation, and the amenity and good order of the locality due to:
• problems with public drunkenness in Aro Park; • the potential for increased antisocial behaviour including vagrancy, and begging; • potential traffic and parking congestion; • crime including alcohol-fuelled fighting, theft and burglary; • public safety issues particularly around the school, playground and hall, for people walking through the park at night, and issues relating to public harassment; • vandalism (including broken glass and property damage), disruption from noise, and litter; • the number of existing licensed premises within the locality (i.e. proliferation); and • the impact of alcohol on already vulnerable members of the community (i.e. homeless people, those on low incomes and the mentally ill).
[23] A theme in some of the objections is also a concern that the premises are proposed to be part of the Thirsty Liquor franchise. There was conflicting evidence before the DLC about Patels original intention with regards to being part of a franchise.12 Before the Authority, however, counsel for the appellant confirmed that the premises would not be a Thirsty Liquor or franchise store.
Decision of the DLC
[24] The decision of the DLC focuses on the object of the Act, the suitability of the applicant, the proposed days and hours of operation, the amenity and good order of the locality and the issues raised in the reports of the reporting agencies, all of which the DLC said are interconnected.13
[25] In respect of these matters, the DLC expressly said that it principally differed from Patels about what the evidence before the DLC meant for the purpose of evaluating the criteria in s 10514.
[26] The legal tests to be applied do not feature large in the decision of the DLC. Notably, the DLC agreed that its role was to stand back and consider the totality of the evidence before it and in applying the criteria in s 105, to ask itself whether it was satisfied, having regard to all the relevant factors, that the grant of the licence is consistent with the object of the Act.15
[27] The DLC formed the view that the amenity and good order of the locality would suffer if the licence is issued and that the days and hours sought are excessive.
12 DLC decision at [101] 13 DLC decision at [94] 14 DLC decision at [97] 15 DLC decision at [96] 7
Looking at all the relevant factors together, the DLC concluded the grant of the application would not be consistent with the object of the Act.
Grounds of Appeal
[28] The grounds of appeal are that:16
(a) the DLC failed to interpret correctly the provisions relating to the grant of off- licences to stores under ss 105 and 106 (1) of the Act; and
(b) the DLC erred in failing to have regard to the purpose of the Act, and the object of the Act, alongside the long record of the applicant selling and supplying alcohol safely and responsibly in Aro Valley.
[29] More particularly, the appellant says that the DLC:
Section 105(1)(b) (suitability)
(a) failed to weigh correctly the applicant’s evidence as to matters of suitability against the evidence from reporting agencies and objectors;
(b) misdirected itself in failing to reach a conclusion as to whether the applicant was suitable to hold an off-licence, despite the applicant presently holding another off-licence for an adjacent off-licence premises;
(c) misdirected itself in concluding the applicant had not consulted with the local community, in circumstances where that consultation was carried out;
Section 105(1)(d) (days and hours of trading)
(a) failed to have regard to evidence of the operation of other licensed premises in the locality;
(b) failed to have regard to the Inspector’s evidence regarding the days and hours of trading;
(c) failed to consider, by way of a rational and proportionate response to potential ARH caused by excessive and inappropriate consumption of alcohol, whether the application could have been granted on shortened hours of trading;
Section 105(1)(h) (amenity and good order of the locality)
(a) misdirected itself in holding that there is effectively an onus on the applicant to satisfy the DLC that the criteria for granting the licence are met in circumstances requiring a subjective inquiry by the DLC;
(b) failed to satisfy itself, based on the evidence before it, of the area in which the premises are situated;
16 the Notice of Appeal also sets out as a ground of appeal that DLC applied the wrong legal test in declining the applicant’s pre-hearing application for production orders under the Commissions of Inquiry Act 1908, but this ground of appeal was not pursued before the Authority 8
(c) failed to weigh correctly the applicant’s evidence as to the locality against the evidence from the reporting agencies and objectors;
(d) erred by making findings of fact regarding the potential availability of alcohol in the locality, and the effects of alcohol consumption, that were not in evidence before the DLC;
(e) failed to weigh correctly the applicant’s evidence as to the availability of alcohol should the off-licence be granted, against the unqualified evidence from the reporting agencies and objectors;
Section 105(1)(k) (matters raised in reports by reporting agencies)
(a) failed to weigh correctly the applicant’s evidence against the evidence from the reporting agencies and objectors (and in particular the evidence of the reporting agencies and objector parties given in response to cross examination);
(b) inappropriately weighted evidence from the Police regarding matters beyond their area of expertise and direct knowledge in the locality the premises is situated in;
(c) inappropriately weighted evidence from the Medical Officer of Health regarding matters beyond their area of expertise; and
Section 106(1) (effects of issue of licence on amenity and good order of the locality)
(a) misdirected itself by applying the wrong legal test for assessing the effects of noise, nuisance and vandalism, existing licences, and neighbouring land compatibility in a ‘greenfield’ application such as this.
[30] It is also submitted that the DLC erred by merely stating its view about the object of the Act without setting out the reasons for its view. Moreover, given that the appellant says it is suitable to hold a licence, had the DLC considered other options available to it in respect of conditions, the DLC need not have declined the application.
Appellant’s submissions
Suitability
Failure to weigh the evidence correctly
[31] Mr Laing for Patels submits that the evidence before the DLC demonstrates that the character of the appellant is suitable to hold an off-licence and that the DLC did not take a ‘global approach’ to suitability. In particular, it is submitted that the DLC failed to give weight to the evidence that both Mrs Patel and Mr Hira, as directors, are suitable because:
(a) they are hard-working and take their obligations seriously; (b) Patels is an experienced operator of licensed premises that has built up a solid customer base and reputation; (c) Mrs Patel has a loyal following amongst her customers and no evidence was before the DLC to discredit her character; and 9
(d) Mr Hira is an experienced operator of licensed premises and, in addition to his ‘day-job’, he spends several hours assisting Mrs Patel, and assisting another friend run his off-licence.
[32] Mr Laing submits that it is accepted that a higher threshold of character is required given the nature of the locality but submits that this threshold is met.
[33] Mr Laing submits further that in terms of the operation of the grocery off-licence:
(a) the directors of the appellant are highly experienced operators of off- licences and the way in which they run their current premises (the grocery store) is commendable and staff have not failed any CPOs;17 (b) under cross-examination Mr Hira demonstrated that training was appropriate for premises of the kind proposed and the DLC was satisfied that the appellant had appropriate systems, staff and training in place; and (c) discussions conducted by Mr Hira or Mrs Patel will take place with staff every two to three weeks about serving alcohol, signage, ID checks, and assessing intoxication: and that these are appropriate measures which a licensee for small premises can take to operate premises to a high standard.
[34] Regarding the proposed operation of the premises, Mr Laing submits that:
(a) the DLC accepted that there were no significant issues raised with regard to how the premises would operate but further, Mr Hira is open to suggestions from community objectors in relation to opening and closing hours, thereby demonstrating a sensitivity toward the needs of the community (and in particular, offering to close the store when children are likely to walk by around 9.00am and 3.00pm weekdays); (b) there will be no advertising of discounts of alcohol and there will be no website for the premises which reduces the risk that customers might be prompted to buy more alcohol than they might normally because it is on special; (c) the appellant acknowledges the need for managers to be on site at all times and has invested in CCTV systems which will be monitored, including having them trained on Aro and Devon Streets to address any issues of breaches of the liquor ban; and (d) staff will be required to remind customers of the liquor ban and to suggest to anyone consuming alcohol in the liquor ban to move on.
[35] Mr Laing further submits that the DLC made no findings about the appellant not being honest and made no adverse findings about any previous convictions.
[36] Mr Laing also submits that the DLC did not give sufficient weight to Mr Hira’s answers as to how he would respond to the issues raised by the reporting agencies, incorrectly inferring that he would not respond. Against this, it is submitted that Mr Hira gave evidence that the measures currently in place for the grocery store would be put in place in the bottle store, but additional measures would be implemented including the screening of the windows with a one-way film, and the use of branded bags to trace litter.
17 previous CPOs involving Mrs Patel were in 2005 and 2009 when Mrs Patel ran the Four Square across the road 10
[37] It is also submitted that the DLC wrongly discredited Mr Hira’s views and knowledge about drinking patterns in Aro Valley and used this as a mark against his character. It is submitted that Mr Hira’s opinion that the bottle store licence will not lead to an increase in harm is based on his nearly two decades of experience in selling alcohol and the measures he said will be taken to ensure alcohol is sold and consumed safely and responsibly (including the surrender of the existing off-licence for the grocery store).
[38] In terms of the vulnerability of the locality, Mr Laing submits that Patels acknowledges that the locality of Aro Valley is a vulnerable area and its population includes vulnerable people. It is submitted, however, that having appropriate systems in place to train staff and to monitor where alcohol is being consumed, demonstrates the appellant’s suitability.
Appellant currently holds an off-licence
[39] It is also submitted that the DLC has already determined the appellant is suitable to hold an off-licence as it has issued a licence for the grocery store. As a result, it is submitted that the DLC has misdirected itself about the applicant’s suitability in respect of this application.
[40] It is submitted that it was not open to the DLC on the evidence before it to state that the DLC had little confidence that Mr Hira understood the responsibilities of holding a licence in the context of a bottle store in a vulnerable community, or that the DLC was not able to fully evaluate the suitability of the appellant because Mrs Patel chose not to give evidence before it.
[41] It is further submitted that Mr Hira gave detailed responses to questions about how the sale of alcohol would be managed. The experience of Mrs Patel and Mr Hira in terms of their awareness of the implications of holding an off- licence when they already hold an off-licence in the area, it is submitted, should not have been discounted so lightly by the DLC.
Consultation with the community
[42] Mr Laing also submits that the DLC incorrectly said that Patels saw no need to consult the community and that the appellant did in fact consult the community to the extent that was necessary, given the circumstances. As a result, the nature of the consultation undertaken should not detract from an assessment of suitability. The evidence, Mr Laing submits, also records that Mr Hira said he will consult the community over various matters about the premises and proposed branding.
[43] Mr Laing submits that, as was put to the DLC, this application is for the introduction of a bottle store into an area with existing on- and off-licences, and where other bottle stores are located just outside the locality. The degree of consultation undertaken, it is submitted, reflects these circumstances.
Days and hours of trading
Operation of other licensed premises in the locality
[44] Mr Laing submits that applying for the hours of 8.00am to 10.00pm is reasonable given the licensed hours of other nearby off-licences. Nevertheless, before the DLC Mr Hira stated that he was willing to reduce the hours of trading to open at 9.00am in 11 response to objectors’ concerns about the exposure of young children to alcohol advertising.
[45] It is also submitted that the opening hours of other premises were not considered by the DLC when considering the application and that it is reasonable for Patels to request similar hours.
Inspector’s evidence regarding the days and hours of trading
[46] It is submitted further that the Licensing Inspector noted under cross-examination that reduced trading hours would be a reasonable control to impose on premises, which shows that the hours applied for are reasonable for premises of the kind proposed.
Whether the application could have been granted on shortened hours of trading?
[47] Mr Laing submits that it would have been rational and proportionate for the DLC to consider shortened trading hours in response to the concerns of objectors. Instead, it is submitted, the DLC considered the hours as long and that there was no proposal by Patels to reduce these hours. It is submitted that it was open to the DLC to consider the imposition of reduced hours but that the DLC failed to question Mr Hira about this.
[48] In other decisions it is submitted that the DLC recognised that there is no requirement to be sure that particular conditions would reduce ARH and that it is entitled to apply the precautionary principle. In these other decisions, the DLC has shortened hours and it is submitted that the same could have been done in this case, thereby allowing the statutory criteria to be tested.
Amenity and good order of the locality
Onus on the applicant
[49] Mr Laing submits that the DLC made a clear error of law in stating that the applicant had failed to make a case for satisfying the criteria in s 105 about the effect of the issue of the licence on the amenity and good order of the locality, and that the DLC effectively required the appellant to satisfy a negative proposition.
[50] In any event, it is submitted that Mr Hira’s evidence includes detailed information in relation to Aro Valley including his view of the locality. This evidence, it is submitted, included discussion about the premises’ proximity to sensitive sites (i.e. parks, schools and community facilities), the student population, vulnerable persons and social housing areas, noise, nuisance and vandalism, nearby licensed premises, traffic concerns and hospital data.
[51] The appellant submits that the DLC’s finding that the issue of the licence will reduce the amenity and good order of the locality, to more than a minor extent, was not reasonably open to it on the evidence. By electing to have regard primarily to s 105(1)(h), it is also submitted that the DLC erred by availing itself of what could be seen as a less stringent standard. This, it is submitted, appears to have been done because the DLC adopted the view advanced by objectors that a bottle store is qualitatively different from other kinds of off-licences. 12
[52] The appellant submits that for the DLC to find that the area is generally pleasant and agreeable is at odds with its previous finding that the locality is so badly affected by existing licences such that it is not desirable to issue another licence.
[53] In terms of the DLCs consideration of noise, nuisance and vandalism, the appellant submits that the DLC concluded that an increase in the availability of alcohol will likely result in an associated increase in levels of noise, nuisance and vandalism. It is submitted, however, that the DLC gave no weight to the significant and meaningful controls that Patels said it would apply to prevent the risk of any increase in noise, nuisance and vandalism.
[54] In terms of the number of premises in the locality, it is submitted that while there are no bottle store off-licences in the Aro Valley commercial area, others are located nearby. As such, it is submitted this is not a case where a type of alcohol will be introduced that is unavailable in the Aro Valley. And as already stated, it is submitted that the DLC did not weigh the concession that the appellant was willing to make, namely the surrender of its existing off-licence for the grocery store.
[55] With regards to potential future noise, it is submitted that a narrower meaning ought to be given to s 106(1)(a) when considering a new off-licence bottle store and that regard should only be had to noise generated directly by, or emanating from, the operation of the store. In this regard, it is submitted that the DLC did not properly consider the evidence of the Inspector that no issues with noise in the area could be attributed directly to 102 Aro Street in its current use as a fruit store, nor the appropriate controls the applicant said it will put in place to limit noise.
Section 105(1)(k) (matters raised in reports by reporting agencies)
[56] Mr Laing also submits that the DLC erred by not properly weighing the evidence before it, particularly that given under cross-examination. It is submitted there was no direct evidence before the DLC of purchasing patterns and behaviours of persons in the locality to support a finding that vulnerable persons are likely purchase more alcohol leading to a real risk of ARH, if the off-licence is granted. A key contention of the appellant is that rather than a new bottle store increasing the market, a new bottle store will split the market. It is submitted that the DLC did not accept this contention and instead of relying on the experience of the directors of Patels, the DLC chose to rely on speculation from other witnesses before the DLC.
[57] It is also submitted that the DLC failed to have regard to the significant number of additional controls relating to the manner in which the appellant will operate its small premises including the size of the store i.e. a smaller volume of products will be sold; the appellant will not compete on price; and advertising will not be permitted given the District Plan.
[58] It is also submitted that the evidence of the Police was not properly weighed given that Sgt Muir accepted that at the time of the application that he was relatively new to the Police Alcohol Harm Prevention Unit and that he did not have lengthy experience in Aro Valley. As a result, it is submitted Sgt Muir’s evidence should have carried less weight.
[59] In terms of the evidence from the Medical Officer of Health, Mr Laing submits that while Ms Boston’s evidence is summarised by the DLC, it does not record her answers to questions under cross-examination notably that there is no LAP restricting the density of off-licences in Wellington; the store will be on the ‘smaller size’ in Wellington; 13
Patels is willing to accept conditions on its licence; and that Ms Boston did not have any particular information on purchasing patterns in Wellington. It is submitted, therefore that the DLC did not weigh all the evidence given by Ms Boston.
Object of the Act
[60] In terms of the object of the Act Mr Laing submits that when undertaking its final cross-check of an application against the object of the Act, which imports a desirability criterion as to whether a new licence ought to be granted, the purpose of the Act is also relevant.
[61] It is submitted by Mr Laing that the appellant’s application, with appropriate conditions, accords with the object of the Act and the DLC failed to have regard to the good track record of Patels, the stated commitments to sell alcohol safely and responsibly, and Patels willingness to trade with appropriate conditions that seek to reduce the risk of ARH.
[62] It is submitted that in finding that the object of the Act is not met, the DLC merely stated a view which was devoid of reasoning required to substantiate how and why declining the licence was warranted.
[63] Mr Laing submits that the appellant accepts that there is an evidential foundation establishing a link to the risk of ARH (caused by excessive or inappropriate consumption of alcohol) following the opening of the store but contends that there are options to minimise that ARH which, within a reasonable system of control, do not justify declining the grant of the application.
[64] It is submitted that these other options were open to the DLC had in not fallen into error in not properly assessing and weighing the evidence before it. By failing to consider whether the imposition of conditions, in relation to an area where there are other licensed premises and where alcohol is already available, it is submitted that the DLC did not properly discharge its obligation to have regard to the object of the Act.
[65] Mr Laing submits that the focus of the DLC, and now the focus of the Authority on appeal, within the confines of a reasonable system of control that authorises the sale of alcohol by suitable applicants, is to consider what appropriate controls might be imposed including shortened hours or trading, to minimise ARH caused by the excessive or inappropriate consumption of alcohol.
[66] Before the Authority Mr Laing also submitted that as the DLC failed to separately discuss the object of the Act under s 105(1)(a), leaving consideration of the object of the Act to when the DLC reached its conclusion, the DLC erred. Mr Laing submits that it is not open to a DLC to consider s 105(1)(a) as part of its required cross-check of the application against the object of the Act before making a decision.
Submissions of Police
[67] Sergeant Christopher Muir for the New Zealand Police submits that Patels bears the onus of satisfying the Authority that its decision should differ from the DLC’s decision.
[68] It is also submitted that the DLC should have been able to hear from Mrs Patel as Mr Hira agreed before the DLC that Mrs Patel talks to him about every decision the 14 company makes. Mrs Patel, however, chose not to give evidence to support the application.
[69] Sergeant Muir says that his evidence describes him talking to Mrs Patel about becoming a Thirsty Liquor franchise, and that the evidence of Ms Boston is that she discussed this with Mr Hira. It is submitted that in the end the DLC found Ms Boston’s evidence more favourable than Mr Hira’s.
[70] It is further submitted that Mr Hira provided no evidence of his experience in operating an off-licence. His evidence, it is submitted, is that he has owned and operated a grocery store but provided no evidence of having been employed in a bottle store. Police submit that being a licensee of a bottle store is different to operating a grocery store where sales are considerably less. This, it is submitted goes to the question of suitability.
[71] It is also submitted that the DLC found unrealistic Mr Hira’s assertion that there would be no increase in alcohol consumption in Aro Valley following the opening of a new bottle store. It is submitted that Mr Hira provided no evidence to support his view that a new bottle store would split the market and that such a view is incorrect. A new bottle store, Sgt Muir says, will introduce RTDs and spirits into an area where they are not currently able to be purchased, resulting in Patels having the only share of that particular market.
[72] It is also submitted that it was only after hearing from the objectors before the DLC that Mr Hira offered to close the premises at 3.00pm when school children would be walking past. Despite agency and objectors’ concerns about hours, it is submitted that prior to the hearing before the DLC Patels did not offer to reduce the closing hours in an attempt to allay those concerns.
[73] It is also submitted that while Patels said it would target ‘premium customers’ they provided no information as to how they would do this and again, in the end, the DLC did not accept this after listening to Mr Hira’s responses under cross-examination.
[74] The agencies and objectors, Sgt Muir submits, presented evidence of a vulnerable community but Patels proposed solution is to post a notice of the liquor ban, observe CCTV and have branded bags. It is submitted that these measures will not reduce ARH.
[75] It is also submitted that the evidence of Police about calls for service is sufficient evidence to show a concerning level of alcohol related disorder and crime for the Aro Valley. Police submit that the DLC was right to be concerned about Mr Hira’s attitude about operating a bottle store in a vulnerable community.
[76] It is also submitted that the onus is on Patels to demonstrate their suitability and that they have failed to do so; the more vulnerable a community, the higher the threshold is for suitability.
[77] Police submit that the decision of the DLC, which is that Patels does not satisfy either of the limbs of s 4, is correct and should be confirmed.
15
Submissions of MoH
Location
[78] Dr Palmer, the Medical Officer of Health, submits that the DLC recognised the vulnerability of the community, and that the evidence of Ms Boston provides a clear picture of the demographics of the area having lower socio-economic status and an extensive population of at risk young people, as well as social housing. It is submitted that the evidence also shows that area is high in terms of health harms for the younger population, which is a sizeable portion of the resident population. This evidence, the Medical Officer of Health submits is bolstered by Police evidence of crime and the impact of alcohol on amenity and good order.
[79] It is submitted that before the DLC, Mr Hira gave scant regard to the vulnerability of the area and did not accept that a new bottle store would increase the supply of alcohol in the area over and above what is being provided by the grocery store.
[80] The Medical Officer of Health submits the situation here is very similar to that in Nishchay’s Enterprises Ltd18 where the Authority refused an application because the presence of a bottle store in a very vulnerable low socio-economic area containing a primary decile 1a school would have constituted an unjustifiable hazard to pupils, staff and the school community where there were also sensitive residences (i.e. a Salvation Army refuge and CYPS19 hostel). The Medical Officer of Health submits that similarly, Aro Valley is residential, has a vulnerable population, has elevated levels of health harm and crime, and a bottle store would have a significant impact on the local community including a school and neighbouring grounds, and where there are existing concerns with amenity and good order.
Suitability
[81] The Medical Officer of Health submits further that before the DLC Mr Hira misrepresented the type of business he intends to operate. On the one hand it is submitted that Mr Hira stated that the bottle store would be a premium liquor store, while on the other hand, it would be a store that deals in lower priced products which are known to be a risk for younger people. It is submitted that Mr Hira confirmed in evidence before the DLC that he would be catering to the local population which resides in an area of significant deprivation, whilst also purporting to sell premium wine.
[82] It is submitted that Mr Hira demonstrated a lack of knowledge and planning, for example when he referred to the type of wine he would sell as simply ‘red and white wine’ and failed to explain what he meant by ‘premium product’ or what the market was for that product. At the same time, it is submitted that Mr Hira said Patels would sell RTDs and shots, presenting a confused picture which did not show Patels has considered the risks associated with the area.
[83] The Medical Officer of Health submits that in his brief of evidence Mr Hira acknowledged the vulnerability of the community, but when questioned about this it was evident that he gave little regard to the vulnerability of the area.
[84] It is also submitted that Mr Hira did not consult the community, relying instead on a flawed survey as his method of engagement.
18 Nishchay’s Enterprises Ltd [2013] NZARLA PH 837 19 i.e. the former Children and Young Persons and their Families Services 16
[85] The Medical Officer of Health submits that under cross-examination Mr Hira stated that it was not his problem what customers did once they left the premises in effect abdicating responsibility for the contribution that any alcohol he would sell would make to ARH in the area.
[86] In terms of systems and training, the Medical Officer of Health submits that while having a till system and CCTV system go some way to having good operational systems, there remained a concern before the DLC about whether a manager would be present on the premises at all times, and that no prescribed training was proposed.
[87] It is also submitted that the decision for Mrs Patel not to give evidence before the DLC, given previous DLC commentary that Mrs Patel’s suitability to operate an off-licence for the grocery store was marginal, reflects badly on the appellant’s suitability in this application.
Hours of Licence
[88] The Medical Officer of Health also submits that unlike the DLC’s decision in respect of Capital Liquor20 where the DLC renewed an off-licence subject to a reduced closing time of 6.00pm, the area of the proposed premises here is residential in nature and is not a business district. The area, it is submitted, has a specific topography and is an area where there are already pre-existing issues relating to amenity and good order. Also, unlike in Capital Liquor, the business is not yet operational.
[89] By Mr Hira’s own admission, it is submitted that the volume of alcohol in the area will increase and surrendering the grocery store licence is not a 1:1, like for like, transaction.
[90] Given the extremely high threshold for suitability in the circumstances, and negative findings, the Medical Officer of Health submits that for Patels, there are no hours of trade that would be suitable.
[91] The Medical Officer of Health submits that the Authority should be slow to draw different factual conclusions to that of the DLC and that the onus remains on the appellant to satisfy the Authority that the decision of the DLC is wrong.
Submissions of Inspector
[92] In addition to matters touched on by the Police and the Medical Officer of Health, Mr Phil Whelan, the Licensing Inspector submits that the area in which Patels proposes to have off-licensed premises is not suitable. Mr Whelan submits that in Patels saying that he supports the days and hours sought, Patels has misunderstood his position. Mr Whelan made it clear before the Authority that he disagrees with the application in toto and the comments in his s 103 report that he had no issue with the days and hours were made without prejudice to his opposition to the grant of the application.
[93] Mr Whelan submits that if the application cannot ultimately meet the object of the Act, it cannot be granted. Mr Whelan submits:
In my opinion, predatory applications such as this, seeking to sell and supply alcohol of the types described by the applicant in ‘vulnerable’ communities such as this should serve as a clarion call to reporting agencies. In my opinion, the WDLC
20 an off-licence bottle store in Dixon Street, Wellington 17
gave the correct weight to evidence it was able to hear first-hand. With the WDLC making clear that they arrived at their positions based on the evidence before them rather than relying on previous findings.
[94] The Inspector submits that the Authority should dismiss the appeal and confirm the DLC’s decision.
Submissions of Objectors
[95] Mr Sherriff for the objectors submits that this is an application for a new licence in a vulnerable community which is opposed by all three reporting agencies and multiple public objectors including a primary school Board of Trustees. Mr Sherriff submits that there was extensive evidence of ARH already in the community, against which Mr Hira was the only witness for Patels and that he showed little to no comprehension of the characteristics of the community or of its sensitivities. Further Mr Hira does not live in the community and works full time, 40 hours a week, in another job and would not be the hands-on operator of the premises.
[96] Further it is submitted that unlike in Nishchay’s Enterprises Ltd, neither Mrs Patel nor Mr Hira visited Te Aro school; neither have ever operated a bottle store; and here the DLC did not hear from the hands-on operator of the proposed premises who is also the company’s sole shareholder and alter ego.
[97] Mr Sherriff submits that the approach taken by the DLC is consistent with the orthodox approach taken to the evaluation of bottle store applications and there was no error in law in the approach taken by the DLC.
[98] It is further submitted that Patels must satisfy the Authority that the decision of the DLC is wrong and that it is not sufficient to submit that a different conclusion should, or could, have been reached. Moreover, it is submitted that it is not an error of law for the DLC to have preferred or to have accorded more weight to the evidence of some witnesses over others unless that reaches a point of irrationality and unreasonableness which is not the case here.
No error of law
[99] Mr Sherriff’s primary submission is that there is no error of law here which would warrant the Authority interfering with the decision of the DLC.
No evidence from Mrs Patel
[100] It is further submitted that it is only people, not companies who can sell alcohol despite companies being ‘natural persons’. As a result, for private single-shareholder companies like Patels, where the sole shareholder is also a director, there is a need to pierce the corporate veil to examine the suitability of the person beneath. In this case, that person is Mrs Patel who did not give evidence despite the evidence being that she would also be the hands-on operator of the premises for most of the time.
[101] Mr Sherriff submits that as Mrs Patel is Patels alter ego and as she did not give evidence in support of the application, the suitability of the appellant could not be established and that is fatal to the application. Not hearing from Mrs Patel, it is submitted, deprives the decision-maker, the reporting agencies, and objectors from questioning and hearing from the prospective human operator who, if successful, will effectively be the licensee. 18
[102] It is submitted that as Mrs Patel was available and attended the hearing, the DLC is entitled to infer in the absence of any satisfactory explanation for her not giving evidence, that she would not have assisted the case for the application.
[103] Mr Sherriff accepts that an applicant for a licence does not have to prove its suitability, but her absence means that the DLC was unable to resolve, for example, the conflict in the evidence about the bottle store being part of the Thirsty Liquor franchise, and that the DLC could not determine the appellant’s suitability. Mr Sherriff submits that Patels is ‘hoisted [with] its own petard’ and if the DLC cannot determine suitability, then the appellant is not entitled to a licence.
A gestalt
[104] It is also submitted that the vulnerability of the locality has bearing on suitability as the Authority determined in Nishchay’s Enterprises Ltd and Shady Lady Lighting v Lower Hutt Liquormart Ltd,21 and confirmed by the High Court in Lower Hutt Liquormart v Shady Lady Lighting.22 Mr Sherriff submits that where vulnerable communities are already experiencing ARH the three statutory criteria in s 105(1)(a), (b) and (h) all intersect, overlap and inter-relate and culminate in a composite conclusion that if suitability is not satisfied, and the amenity and good order of the locality will be reduced by more than a minor extent, the application will be contrary to the object of the Act. It is submitted that, as Mr Whelan put it before the DLC, the outcome of the evidence is a gestalt. In light of this, Mr Sherriff submits, the DLC ‘got it right’.
Sections 105 and 106
[105] In terms of the evidence, Mr Sherriff submits that the preponderance of evidence points to the refusal of the application. To have granted the application, it is submitted, would have been contrary to the totality of the evidence as to be perverse in the legal sense of that word.
[106] It is submitted that there was a ‘tsunami’ of evidence for the reporting agencies and the objectors who gave evidence before the DLC, and the written objections of others against Mr Hira’s evidence which did not advance or assist Patels’ case.
[107] It is submitted that this is not an application for another similar off-licence to the grocery store licence held by Patels, but is a different kind of licence under s 32 of the Act and is utterly different from that for a grocery store. Where a bottle store’s principal business is the retail of all forms of alcohol in excess of 85% of its revenue, a grocery store’s principal business is the sale of food products. It is submitted that Mr Hira himself gave evidence that there is no comparison between the two with 20% of the grocery stores sales being alcohol, while it will be 100% of the bottle store sales.23
[108] Consequently, it is submitted that a decision-maker is entitled to consider that suitability to hold a bottle store licence is different from an applicant’s suitability to hold a grocery store licence because of the potential for ARH to increase with a bottle store.
[109] It is further submitted that the vulnerability of the area not only raises the threshold for suitability, but it also raises the threshold for evaluating the effect of the issue of a licence on the amenity and good order of the locality because of the definition of
21 Shady Lady Lighting v Lower Hutt Liquormart Ltd [2018] NZARLA 198 22 Lower Hutt Liquormart v Shady Lady Lighting [2018] NZHC 3100 at [59] – [65] 23 Transcript, unnumbered page 243 19 amenity in s 5; because s 105(1)(h) requires consideration of whether amenity and good order of a locality is likely to be reduced; and by virtue of consumption being referred to in both limbs of s 4.
[110] Mr Sherriff submits that overall Mr Hira’s evidence was inadequate and lacked the detail one would expect from an applicant seeking a new off-licence for a bottle store. It is submitted that there was no business plan setting out the appellant’s appreciation of the locality and proposed market, proposed products, or response to the evidence in opposition. The application was not accompanied by an accurate floor plan, accurate depictions of signage, employment agreements, training manuals, engagement with the community, or details of the arrangements for monitoring CCTV cameras, amongst other things.
[111] It is submitted that when asked about the vulnerability of the locality, Mr Hira said that he had never seen evidence of vulnerability or harm and was not able to comment on the evidence of the agencies and objectors.
[112] Mr Sherriff submits that taking a global approach to suitability does not mean that Mrs Patel’s suitability to run a grocery store in Aro Street establishes that she is, through her company, suitable to be issued a bottle store licence in Aro Street and suitability requires more than just honesty and being conviction-free.
[113] In terms of the proposition that a new bottle store will split the market, Mr Sheriff submits that a similar proposition was rejected in Sapphire Dreams Ltd24 and Tony’s Liquor Upper Hutt25 where, in the latter case, the Authority rejected the proposition that the applicant would not be targeting the same clientele as the existing off-licence premises and where the Authority found it difficult to believe that the location of the proposed premises was coincidental without commercial advantages to the applicant.
[114] It is also submitted that while there is no onus of proof or obligation to produce evidence relevant to the criteria in s 105, that does not mean that if an applicant fails to address one or more criteria, the DLC is to be expected to rectify that omission by conducting its own inquires. It is submitted that an applicant still needs to make its own case in support of the grant of an application and where there is tri-agency opposition and multiple objections, the evidential burden (as opposed to the probative burden) is commensurably greater given the approach a decision-maker is required to take when evaluating an application. Evaluating the s 105 criteria also requires the evidence of the applicant to be evaluated alongside the objections and tri-agency opposition which, it is submitted, is the approach the DLC took.
[115] It is submitted that the DLC explained why it did not accept Mr Hira’s evidence and why it formed an opinion under s 105(1)((h) and not (i), which reason it is submitted, was lawfully available to it.
[116] It is also submitted that it is fanciful for an applicant for a new bottle store to contend that the noise, to which the DLC must have regard under s 106(1)(a)(i) is confined to noise generated by, or emanating from, the operation of the store as the appellant does. It is submitted that is not only contrary to what Clark J said in Lion Liquor Retail Ltd26 but is contrary to the wording of s 106(1)(a)(i) which refers to the locality.
24 Sapphire Dreams Ltd [2012] NZLLA PH 1370 25 Tony’s Liquor Upper Hutt [2014] NZARLA 171 at [20] – [25] 26 Medical Officer of Health v Lion Liquor Ltd [2018] NZHC 1123 at [64], and [67] – [68] 20
[117] In respect of the imposition of conditions, Mr Sherriff submits that as this Authority said in Lyger Investments Limited,27 an applicant must first be able to demonstrate compliance and consistency with the object of the Act before a DLC determines conditions might be imposed.
[118] It is finally submitted by Mr Sherriff that the appeal should be dismissed and the DCL decision confirmed. Without prejudice to this position, however, should the Authority grant the application, it is submitted that the hours should be 9.00am to 9.00pm.
The Evidence
Mr Hira for the appellant
[119] Mr Hira was the sole witness for Patels. Mr Hira gave evidence that he runs Patels Superette, and, in particular the preparation of accounts, which he has done since the grocery store was open in 2000.28
[120] Mr Hira outlined his work experience and said that he was the owner/operator of a food market in Newlands between 1993 and 2007, as well as assisting Mrs Patel and her late husband run the Four Square across the road from the proposed Aro Liquor site between 2002 and 2015. When the lease for the Four Square ended, Patels was set up across the road from it and was granted an off-licence in 2017.
[121] Mr Hira said that Mrs Patel is the hands-on manager of the grocery store and that she has not failed a CPO.29
[122] Mr Hira outlined the object of the Act but also said that he disagreed that Aro Liquor would contribute to the excessive or inappropriate consumption of alcohol as suggested by the reporting agencies.30
[123] In terms of the premises opening hours, Mr Hira said was that he was confident in Patels ability to trade until 10.00pm which he said is the same time that the Garage Project and that Shalimar’s Four-Square trades until 11.00pm.31
[124] Mr Hira described the layout of the store and said that the premises signage will “not look like a franchise bottle shop signage”. Mr Hira said his focus will be on premium quality products but will also sell ‘regular products too’ but will not have room for pallet size displays of RTDs, and other things. Due to the size of the premises, Mr Hira said the store will not be able to carry a very wide range or depth of stock.32
[125] In terms of systems, staff and training, Mr Hira outlined that the till system will have prompts for checking identification, there will be host responsibility in place, and there will be signs displayed to say alcohol will not be sold to intoxicated persons or minors and people without identification will not be served.33
27 Lyger Investments Limited [2018] NZARLA 299 at [96] - [99] 28 Hira BoE at [6] 29 Hira BoE at [10] –[11] 30 Hira BoE at [17] 31 Hira BoE at [18]- [19] 32 Hira BoE at [20] – [25] 33 Hira BoE at [26] – [28] 21
[126] Mr Hira outlined that three staff will be employed in the premises in addition to Mrs Patel and himself who will assist on busy nights when two people will be on duty. Mr Hira outlined that the staff are trained about signs of intoxication, checking identification and that Patels expects staff to comply or they could lose their jobs.34
[127] Mr Hira described that CCTV will be in place to help ensure the store is not a target for thieves or vandals. The store will have a monitored alarm and doors and windows will be reinforced and a log book kept for any incidents including where a sale is denied. Mr Hira said from experience he has learned how to operate premises safely when selling alcohol.35
[128] In terms of the amenity and good order of the locality, Mr Hira said in evidence that he has thought about how the store might impact the Aro Valley. He said that both he and Mrs Patel know the area well and described the parks and schools amongst other things.
[129] Mr Hira said that he disagrees that having a bottle store in Aro Valley will change the amenity and good order of Aro Valley because over the last few years he has seen more stores selling alcohol and has not seen a lot of change. In fact, he has seen a lot of improvement with new stores opening and the area becoming more vibrant.36 In respect of objections to the application, Mr Hira said that Patels will ensure that the sale of alcohol complies with the Act and the store’s own policies and that he believes this will ensure that harm is minimised.37
[130] Mr Hira said further that he was aware that university students can have a reputation for consuming alcohol and that there is a high concentration of students in Aro Valley and surrounding suburbs. Mr Hira said that he is aware that the nearest residence where some 400 students live is a 12-minute walk away. Mr Hira said other halls of residence are also close, but many students from those residences are likely to purchase alcohol from outlets closer to them. Mr Hira also acknowledged that there are areas of social housing in Aro Street and on Nairn Street, as well as students and a lot of young people who live in Aro Valley. Nevertheless, Mr Hira believes that his store can help contribute to safe and responsible drinking through its pricing and the fact that it will not be able to compete with larger bottle stores on price. Mr Hira said that young people will not be targeted through the way the store prices its products, but instead the store will be targeting premium customers.38
[131] In terms of vulnerable people and those living in social housing, Mr Hira said that the store will have policies which prevent alcohol from being sold in breach of the law.39
[132] Mr Hira also said that in terms of noise, nuisance and vandalism, it is not his experience that any harm might occur but accepts in might occur after its premises are closed. Mr Hira accepts this could be related to alcohol and that to prevent empty bottles and cans turning up in nearby parks the store will have branded bags to show where alcohol bought from the store is going and whether it is contributing to ARH.40
34 Hira BoE at 26] – [34] 35 Hira BoE at [35] – [37] 36 Hira BoE at [41] 37 Hira BoE at [43] 38 Hira BoE at [44] - [54] 39 Hira BoE at [55] – [57] 40 Hira BoE at[58] – [61] 22
[133] Mr Hira said in evidence that he did not think there would be too many alcohol stores in Aro Valley if a new off-licence is granted for Aro Liquor because none of the other stores is a bottle store such that they target different markets. Aro Liquor’s closest competitor, Mr Hira said is in Victoria Street, but he did not think Aro Liquor would trade in competition with that store. This is because it is in a different area and is a larger store whereas Aro Liquor will be smaller with a local feel. In respect of the prospect of price wars, Mr Hira said that when Patels opened across the road from the other grocery store, there was no price war. Mr Hira repeated that the store would target premium customers and would not aggressively price its products. If competitors choose to match Aro Liquor’s prices, Mr Hira said that would not become a price war but rather it would lead to splitting market and the volume of sales, and not grow it.41
[134] In respect of the data showing hospital admissions, Mr Hira said that he knows alcohol can lead to people going to the hospital and this can be strain on the health systems and he said he did not think having another outlet selling alcohol would change this. Another outlet would just give another option for where people could purchase their alcohol. Mr Hira said that the safe sale and supply of alcohol can assist to reduce hospital statistics as a responsible retailer will not sell in excessive quantities or to intoxicated people or those otherwise prohibited by law. Marketing to premium customers will also help reduce ARH.42
[135] Mr Hira accepted that he was happy to consider conditions on the licence and having branded bags will make it easier to see where alcohol comes from and could help assess causes of ARH and the management of that.
Sergeant Muir for the Police
[136] Sergeant Muir gave evidence of there being three large accommodation areas within a 500m radius of the proposed premises consisting of the Nairnville Flats, Capital Accommodation and the Pukehinau Flats. Within close proximity of the proposes site, Sgt Muir said that there are several walkways allowing pedestrian access.
[137] Sgt Muir said that the proposed location is within the Wellington City Liquor ban area which operates 24 hours a day, seven days a week and the ban area purposely includes Aro Street.
[138] Sgt Muir gave evidence of alcohol infringement notices issued within a 500m radius of the proposed premises said it was his understanding that the majority of all alcohol consumed is purchased from off-licences and consumed in private residences. As a result, Sgt Muir said that there must be a correlation between the ease of access and ARH.43
[139] Sergeant Muir also gave evidence of data held by the Police of where possible ARH and offending has occurred within a 500m radius of the premises. While Sgt Muir acknowledges that some of the event codes used do not necessarily relate to alcohol, there were a considerable number of calls for service for the year commencing 1 September 2016. Sergeant Muir’s evidence in relation to these calls includes cluster maps and heat maps of demand for service. Sergeant Muir’s evidence is that the intersection of Willis Street, Abel Smith Street and Kamo Drive, the Nairn Street Flats,
41 Hira BoE at [62] – 68] 42 Hira BoE at [71] – [75] 43 Muir BoE at [15] 23
Pukehinau Flats and Aro Street shops are areas where there is already a high demand for Police service as identified from Police data.44 Because of these alcohol-fuelled incidents within a 500m radius of the proposed premises, Sgt Muir believes that another bottle store in the area will only increase that harm.
[140] Sergeant Muir also said that the lack of a clearly defined floorplan and no list of alcohol intended for sale with estimated price ranges makes it difficult to establish how the applicant is going to operate a premium store with premium products.
Ms Andrea Boston for Medical Officer of Health
[141] Ms Boston is employed by Regional Public Health as a public health adviser in the tobacco, alcohol and other drugs team.
[142] Like Sgt Muir, Ms Boston gave evidence of the liquor ban area and said that the ban is of long standing. Ms Boston said that the bylaw’s very existence correlates with areas where the amenity and good order is poor.45
[143] Ms Boston’s evidence is that the proximity of Aro Valley to Massey and Victoria Universities suggests that the area is a popular place for students to rent and is also popular with other young adult renters. Aro Valley is an area providing social housing and has a deprivation score of eight out of ten46 meaning that residents have lower incomes and less disposable income than others.47 The age profile for the Aro Street- Nairn Street ‘area unit’ is that 68.11% of the population is aged 15-39 years of age, and 35.57% is aged 15-24 years of age.48 Hazardous consumption within the Capital and Coast DHB shows the prevalence for hazardous consumption for those aged 15- 24 years old is 32.5% and above the national average of 25.6%.49 In short, Ms Boston says that “there are not simply more people in that age group in Wellington, there is a significant population of young people and these young people have higher rates of hazardous consumption than New Zealanders of the same age group generally”.50
[144] Ms Boston also gave evidence that within one kilometre of the proposed store are 13 other stores selling alcohol: ten grocery stores, wo bottle stores and one ‘higher end’ bottle store. Ms Boston gave evidence of research that correlates outlet density with increased ARH and that in New Zealand, the distance travelled to the nearest outlet was directly correlated with the level of harm.51
[145] Ms Boston said further that when she was interviewing the appellant, she uncovered a different business model to that proposed in its application. Ms Boston said in her discussions with Mr Hira he was not forthcoming about the types of products he would sell as a premium liquor store and struggled to answer questions put to him. When asked about the grape varietals he intended to sell, Ms Boston said he replied, “red and white wine” and did not expand further. Ms Boston said Mr Hira was not
44 Muir BoE at [19] – [27] 45 Boston BoE at [8] – [11] 46 ten being the most deprived 47 Boston, BoE at [12] 48 Boston, BoE at [13] 49 Boston, BoE at [32] – when age standardised, the prevalence is still 31.7% above the national average of 25.4% 50 Boston, BoE at [14] 51 Boston, BoE at [18] 24 forthcoming about what brands of beer would be sold and he said he would speak to his sales representative about spirits.52
[146] Ms Boston said that Mr Hira advised her that he had approached a franchise that he might buy into, namely Thirsty Liquor, which franchise operates a business model targeting affordable or cheaper price alcohol. This, Ms Boston said, did not match Mr Hira’s stated intention to open a premium bottle store.53
[147] Ms Boston said that during her interview with Mr Hira he was also unable to recall any of the concerns about Patels’ previous application for its grocery store and considers that a responsible applicant would have made it his duty to demonstrate he was familiar with those concerns and take actions to alleviate them.
[148] In response to questions about consultation with the community, Ms Boston said that Mr Hira replied he had spoken to some business owners but that was all and that he did not see any need to communicate with people in the neighbourhood directly.54
[149] Ms Boston also gave evidence that during her interview with him, Mr Hira did not engage fully with her, either refusing to answer questions or giving non-committal answers to many of her questions. Ms Boston said Mr Hira tended to gloss over concerns and showed a lack of understanding for the clientele the store will serve.55 Ms Boston said that for the applicant not to have given full consideration to the inquiry by the Medical Officer of Health and demonstrate knowledge of the area left her with cause for concern about Patels’ real intentions.56
Dr Stephen Palmer, Medical Officer of Health
[150] Dr Palmer gave evidence that he looked at risk profile information on age and gender and harm information for alcohol-related attendances at the emergency department (ED) of Wellington Hospital. Further, Dr Palmer has also looked at hospital admissions for three groups of patients – those with conditions that are wholly attributable to alcohol, and those with acute and chronic conditions that are partially attributable to alcohol. In addition, Dr Palmer said that he looked at a recent Health Promotion Agency study on alcohol off-licence purchases and harm in central Wellington.57
[151] This data, Dr Palmer says, was able to model the relationship between the HPA study, ARH for age groups, and ED alcohol-related attendances to show both estimated broad and severe harms for Wellington City ‘area units’ (AUs).58
[152] The outcome of this modelling work is that ARH in Aro Street-Nairn Street, while not quite at the levels found in Lambton, Willis Street – Cambridge Terrace, and Mt Cook-Wallace Street and Newtown East AUs, is skewed towards the high-risk cohorts. After Mt Cook-Wallace Street, Aro Street-Nairn Street is the lead wholly residential AU for ARH, which ARH he would prefer to further minimise from a public health perspective.59
52 Boston, BoE at [22] – [23] 53 Boston, BoE at [25] 54 Boston, BoE at [32] 55 Boston, BoE at [37] 56 Boston, BoE at [40] 57 Palmer, BoE at [13] – [16] 58 Palmer, BoE at [17] – [29] 59 Palmer, BoE at [33] – [35] 25
Mr Phil Whelan, Licensing Inspector
[153] Mr Whelan gave evidence that repeated his submissions before the DLC and said that the DLC should not lightly set aside its own conclusion regarding the amenity and good order of the locality as it pertained to the previous application from Patels. There, Mr Whelan said, the DLC accepted the area is already badly affected by existing alcohol licences. Mr Whelan said that the DLC’s findings regarding the location with regard to this particular applicant is fundamental to his opposition and is “a large part of the gestalt” which forms his opposition.
Ms Kuisa Beltran-Castillion
[154] Ms Beltran-Castillion’s evidence sets out that 10 years ago as a consequence of the closure of Glover Park, Aro Park became a focal point for groups who would drink in the morning, throughout the day, and into the evening. Ms Beltran-Castillion said that by the afternoon when children are coming home from school, the level of intoxication of drinkers in the park is high enough for their behaviour to be threatening and abusive. At night, the drinkers in the park are sometimes aggressive, she says, to the point where she was regularly calling the police to deal with fights and abuse. Consequently, the character of the park changed, and people no longer went to enjoy it.
[155] The park was subsequently renovated, and the Aro Valley Community Council worked with the City Council to impose an alcohol ban in the park. Since then, the community has worked hard to keep the park a central part of the community and an inclusive and safe place for all to enjoy. Despite this, however, Ms Beltran-Castillion says that there is still considerable alcohol-related noise and disruptive behaviour in the park, mostly at night, and that bottles and broken glass can regularly be found in the park. Ms Beltran-Castillion says she sometimes goes to clean the glass from the park before her children go to play. Ms Beltran-Castillion said she has had to clean glass from her doorstep after it has been thrown over the fence and that she has had her mailbox vandalised.
[156] Ms Beltran-Castillion says she genuinely believes that a new liquor store would go against the efforts of the community and return the community to the period after the closure of Glover Park. Ms Beltran-Castillion says there are already three premises which sell off-licence beer, wine and cider within 100 metres of the proposed premises as well as two off-licences, and at least four premises selling spirits within 1.5 kilometres of the proposed premises.
Ms Maria Cassidy
[157] Ms Cassidy has a young family and lives within 130 metres of the proposed premises and close to Aro Park. Ms Cassidy’s objection outlines problems with drunkenness in Aro Park and that the behaviour of those drinking can be intimidating when parents and children are walking through the park. Amongst other things, Ms Cassidy recounted how her 4-year-old daughter once came to her holding an RTD cola and bourbon, and how she once had to call the police as people drinking in the park were acting in an intimidating manner at 2.30pm when she collected her daughter from pre-school.
[158] Ms Cassidy also questions the proposed hours of the premises and considers them inconsistent with Patels’ statement that it is targeting premium customers. 26
Ms Hilary Unwin
[159] Ms Unwin is the co-chair of the Aro Valley Community Council. Ms Unwin objects to the off-licence being granted and gave evidence that many people already drink in Aro Park despite the liquor ban. Ms Unwin considers that the proposed premises will increase the likelihood that the park will be used as a place to meet and drink excessively with a corresponding impact on the safety and wellbeing of the community. Before the DLC Ms Unwin said that the drinkers in the park are “probably quite heavy drinkers” and that the park is one place that they know they can come to during the day and night.60
[160] Ms Unwin’s objection also states that broken glass is already an issue in Aro Park, which is a public play area for many of the children in the area, many of whom live in houses with little or no outdoor space.
[161] Ms Unwin is also concerned that the proposed hours of operation are excessive for selling spirits and that greater availability will increase the likelihood of sales and consumption with a corresponding detrimental impact.
Mr Keith Clement
[162] Mr Clement’s evidence also highlights that Aro Street already experiences late night vandalism from ‘marauding young people’. He too considers the hours are not in keeping with a residential community where people live above and beside the proposed premises. Mr Clement considers the grant of the application will have the effect of prolonging the existing nuisance and noise well beyond the hours most households would expect of neighbours.
[163] Mr Clement is also concerned about security as he considers the premises will likely become a target for attack and the community will have to deal with associated violence as a result.
[164] Mr Clement also outlined that every afternoon after school children gather at the corner of Aro Street and Devon Street where the premises are proposed to be located and this means that they will be exposed to a readily available ‘drinking culture’.
[165] Before the DLC, Mr Clement submitted that the assertion by Mr Hira that the premises will be a premium outlet is betrayed by the proposal to sell RTDs, alcopops and single shot spirits.61
[166] Mr Clement is also critical of the plan of the proposed premises which Patels presented to the DLC, which is not drawn to scale and which he says makes it very difficult to understand how the shop will operate particularly with the rear of the shop being higher than the main floor, and for people with mobility issues.62
[167] Further, Mr Clement is critical of the petition which was in the grocery store which he says offers “three possibilities” as to what it means and is signed by a range of people including a number who do not live in the Aro Valley, and by people living in tenancies. As such, the petition does not reflect the cross-section of the community in the Aro Valley.63
60 Transcript, unnumbered page 328 61 Email titled ‘Closing Submission’ dated 5 November 2017 addressed to the Secretary of the DLC 62 Transcript, unnumbered pages 346 -348 63 Transcript, unnumbered pages 350 - 351 27
Ms Ann Clark
[168] Ms Clark is a resident of Epuni Street where she has lived since 1989. Ms Clark gave evidence that off-licence bottle stores in Victoria and Dixon Streets are a 15- minute walk from Aro Street and spoke to the off-licence wine and beer already available from three superettes in Aro Street as well as alcohol being available from Rita’s, Aro Street Café, and the Garage Project.
[169] Ms Clark gave evidence that she sees alcohol consumption or evidence of alcohol consumption everyday as she walks through the Aro Street park. Ms Clark said that she finds the behaviour of drinkers in the park to be abusive and has seen drinkers throw bottles and cans at each other and at passers-by. Ms Clark said that there are often drinkers in the park at school leaving time.
[170] Ms Clark said in evidence that by and large the community is quiet at night and this makes the noise from those who have pre-loaded alcohol stand out. Ms Clark said these people swear and scream and are generally incapable of respecting the rights of others to peace and quiet. Ms Clark referred to a house in Epuni Street which hosts drinking games which can start as early as 4.30pm and which rarely end before midnight.
[171] Ms Clark also gave evidence of alcohol-fuelled anti-social behaviour and parties which have resulted in calls to the Police and ambulance service. Ms Clark gave evidence of damage to her vehicle and explained how she has installed double glazing in her house in an effort to block noise. Ms Clark says she attributes her frequent loss of quiet peace and enjoyment to the abuse of alcohol by others who live around Epuni Street or their guests.
Mr Daniel Brown
[172] Mr Brown, on behalf of Te Aro School Board of Trustees also gave evidence of the school’s experience in Aro Street. Mr Brown said that the school is concerned with the impact of the application on the health and safety of the school’s children and about increased damage to, and theft from, the school. Mr Brown said that parents and children have reported fighting, broken glass, verbal aggression and public urination as they make their way through Aro Park which is one of the two main pedestrian thoroughfares the children use to get to and from school.
[173] Mr Brown gave evidence that the Board of Trustees considered, and concluded, that a new retailer would present more risks to the health and safety of the children as there are already a number of off-licences in the area, and the premises would see the introduction of spirits, RTDs and other low-cost, high-volume alcohol products that are linked to harmful drinking behaviour in the area when only beer, wine and cider is currently available for purchase. Mr Brown gave evidence that playground equipment has been stolen in the past and taken to student flats and destroyed. Mr Brown also gave evidence that the school continues to have to clean the school grounds of vomit and human excrement following evenings of drinking on the school grounds.64 Mr Philip May
[174] Finally, like the other objectors, Mr May’s objection outlines problems with public drunkenness in Aro Valley and that he considers this will become more of a problem
64 Transcript, unnumbered pages 500 - 503 28 with the availability of spirits only 130m away. Mr May outlines problems with broken beer bottles in Aro Park and the neighbouring preschool playground.
[175] Mr May also notes the number of liquor outlets in the area and considers the proposed hours are unreasonably long for selling spirits and questions what type of premium customer purchases spirits at 7:30 am or 10.00pm on a Monday? In addition, Mr May said in respect of price competition, if the premises are intended to be a high- end liquor outlet where there are two other close high-end outlets which have decent parking, he would expect the shop to “have no choice but to compete on price”.65
[176] When asked under cross-examination whether having spirits located behind the counter such that people must ask for them is a reasonable step to reduce their availability, Mr May responded that that would be a reasonable step to stop shoplifting but he did not see how it would stop someone who is walking in to buy spirits from doing so. As Mr May put it, “once someone is in the store, they are there to buy the booze”.66
Decision of the Authority
Issue
[177] The primary position of the appellant in this appeal is that if the evidence had been weighed appropriately, then the DLC would have found that the application met the object of the Act.
[178] The appellant is of the view that it is a suitable applicant who can sell alcohol, and has sold alcohol, safely and responsibly in the Aro Valley. In terms of any prospective risk of ARH in the Aro Valley, the appellant says that the DLC could have imposed conditions, namely shorter trading hours, to respond to the concerns of the reporting agencies and of the objectors.
[179] It is accepted by the appellant that there is an evidential foundation allowing a link to be drawn between the risk of ARH caused by the excessive or inappropriate consumption of alcohol should the application be granted. That Aro Valley is a vulnerable community is not disputed. Rather, the appellant contends that the appellant is able to sell alcohol safely and responsibly notwithstanding this vulnerability.
[180] That is, contrary to the findings of the DLC, the appellant’s position is that it:
(a) is suitable to hold a licence, largely based on its track record in operating its current licensed grocery store; and
(b) the amenity and good order of the locality is not likely to be reduced, to more than a minor extent, by the effects of the issue of the licence largely because of the safeguards the appellant will put in place.
65 Transcript, unnumbered pages 539 - 540 66 Transcript, unnumbered pages 543 - 544 29
Evaluative function of decision-maker
[181] As we recently reiterated in Lower Hutt Liquormart Ltd 67 and Capital Liquor Ltd68 it is well settled that an appeal brought pursuant to s 154 of the Act is by way of rehearing and the Authority will be slow to draw different factual conclusions from a DLC as the DLC will have had the advantage of hearing the evidence at first instance.69 It is only if the Authority considers that the appealed decision is wrong that it is justified in interfering with it.70
[182] We have also previously set out the now well-articulated approach to be taken by a decision-maker when determining whether to grant an application for a licence.71 A decision-maker must evaluate an application having regard to the criteria in s 105 of the Act: as Gendall J said in Christchurch Medical Officer of Health v J & G Vaudrey Ltd,72 the role of the decision-maker in considering these factors is an evaluative one. Gendall J said:73
Thus, when the relevant body receives an application, they must consider it against s 105 in deciding “whether to issue a licence”. There is no presumptive position, and certainly no foregone conclusion. I think the reality of the position is that if the object of the Act cannot be achieved by the application, then it cannot succeed.
So, in my view, the position can be summarised as follows:
(a) The role of the relevant body upon receipt of an application for licensing or re-licensing is an evaluative one, requiring the decision maker to make a merits-based determination on the application.
(b) In considering an application, the relevant body is fundamentally required to assess whether a licence ought to issue. In so doing, it must:
(i) consider any objections made by persons who have a greater interest in the application than the public generally;
(ii) consider any opposition filed by the constable in charge of the Police station nearest to where the application is filed, a Licensing Inspector, and the Medical Officer of Health;
(iii) have regard to the criteria stipulated in s 105 of the Act …; and
(c) The relevant body must finally cross-check whether the application is capable of meeting the object of the Act.
(d) …
(e) It may impose further conditions in accordance with ss 116(1) and 117…
[183] As an evaluative exercise, rules involving onus of proof are inappropriate.74
67 Lower Hutt Liquormart Ltd [2018] NZARLA 198-199 at [54] – [65] 68 Capital Liquor Ltd [2018] NZARLA 335 at [109] – [110] 69 Mangere-Otahuhu Local Board v Level Eighteen Limited [2014] NZARLA PH 627-228 at [17] 70 Austin, Nichols & Co Inc v Sichting Lodestar [2008] 2 NZLR 141 at [146] 71 Shady Lady Lighting Limited v Lower Hutt Liquormart Limited [2018] NZARLA 198-199 at [55] – [65] 72 Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2015] NZHC 2749, [2016] 2 NZLR 382 73 Christchurch Medical Officer of Health v J & G Vaudrey Ltd , above n 72, at [55] – [56] 74 Re Venus NZ Ltd [2015] NZHC 1377, [2015] NZAR 1315 at [60] and Auckland Medical Officer of Health v Birthcare Auckland Ltd [2015] NZHC 2689 at [52] 30
[184] The evaluative function is an assessment of the potential impact of granting the licence, in light of the criteria in s 105, upon the prospective risk of ARH.75 It is this risk profile that is relevant.
[185] As Gendall J said, the weight to be applied to each of the criteria in s 105 is a matter for the decision-maker. The phrase “have regard to” bears its ordinary meaning and the decision maker must actively and thoughtfully consider the relevant matters. This requires the decision maker to correctly understand the matters to which he or she is having regard, but the weight to be given to such matters is generally within the discretion of the decision maker.
[186] One or more of the criteria in s 105 may assume prominence.76 That is, there will be cases where the matter(s) to which the decision maker is required to have regard are so fundamental or critical that they assume an elevated mantle.77
[187] As a result, it may be that a single criterion is itself a sufficient reason to decline an application. Indeed, within the requirement to stand back and cross-check the application against the object of the Act is the obligation to decline an application where the object of the Act cannot be achieved by an application,78 even if one or more of the other criteria are satisfied. As Gendall J put it, “if the object of the Act cannot be achieved by the application, then it cannot succeed”.
[188] It is for this reason too that we said in Lyger Investments Ltd,79 that the Authority does not consider that it is open for a DLC to consider that where the object of the Act will not be met by an application that a licence can be granted subject to conditions intended to ensure compliance with the Act. To do so is contrary to the ‘test’ articulated by Heath J in Venus,80 and runs contrary to the very risk assessment that a DLC is charged to undertake. If the application does not meet the object of the Act, the application should be declined. The application should not be granted on the basis that the applicant might possibly demonstrate over the ensuing term of the licence that any safeguards the applicant puts in place will be sufficient to satisfy the object of the Act. Satisfaction of the object of the Act is a pre-requisite to the imposition of any conditions.
[189] It also follows that where an application fails to meet one of the criteria which a DLC considers to be fundamental or critical in the circumstances, then there is little to be gained by considering the other criteria or undertaking a cross-check of the application against the object of the Act. A decision-maker is not required to ‘go through the motions’ if it is clear that there is a fundamental obstacle to the object of the Act being met on one or more criterion.
[190] In the present appeal, the only question about whether the DLC has correctly followed the evaluative ‘process’ articulated by Gendall J is whether it is open for the DLC to consider s 105(1)(a) as part of its cross-check.
75 The Medical Officer of Health (Wellington Region) v Lion Liquor Retail Limited, above n 26 at [43] and [47], 76 Re Venus NZ Ltd [2015] NZHC 1377, [2015] NZAR 1315 77 Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2015] NZHC 2749, [2016] 2 NZLR 382 at [78] – while four questions of law were decided for appeal in the subsequent decision Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2016] NZHC 73, this did not relate to the meaning of the words “must have regard” 78 Christchurch Medical Officer of Health v J & G Vaudrey Ltd , above n 16, at [55] – [56] 79 Lyger Investments Ltd [2018] NZARLA 299 80 Re Venus NZ Ltd [2015] NZHC 1377, [2015] NZAR 1315 at [20] 31
[191] The Authority considers this approach is open to a DLC. Gendall J adopted the approach of Heath J in Re Venus NZ,81 where Heath J said that although the object of the 2012 Act is stated as one of criteria to be considered on an application for an off- licence, it is difficult to see how the remaining factors can be weighed, other than against that object. It was for this reason that Heath J articulated the test as “is the Authority satisfied, having considered all relevant factors set out in s 105(1)(b)–(k) of the 2012 Act, that grant of an off-licence is consistent with the object of that Act?”
[192] The point is, that the s 105(1) criteria must evaluated against a benchmark, namely the object of the Act. It makes little sense to require consideration of the object of the Act in s 105(1)(a) as against itself. The inclusion of subs (1)(a) in s 105 is intended to put beyond doubt that a decision-maker is to have overall regard to the object of the Act in considering an application. Considering the object of the Act in a vacuum before considering the other criteria in s 105(1)(b)–(k) is likely to be of limited assistance to a decision-maker. In is implicit that a decision-maker who stands back and cross-checks the factors in s 105(1)(b)–(k) against s 4, will have had regard to the criterion in s 105(1)(a), that is, s 4. The Authority sees no error in the approach of the DLC to the criteria in s 105.
[193] That matter aside, the issue for the Authority in this appeal is whether the DLC’s treatment of the evidence supports the decision reached? Having considered the evidence before the DLC, the Authority is satisfied that the decision of the DLC is one that is supported by the evidence, and that there is no error on the part of the DLC. As Mr Sherriff for the objectors rightly submits there is nothing that warrants the Authority interfering with the decision of the DLC.
Suitability
[194] In terms of the appellant’s suitability, as the Authority said in Nishchay’s Enterprises Ltd,82 suitability is a broad concept:
Traditionally, [the test of suitability] has been interpreted as meaning whether or not an applicant will comply with the penal provisions of the Act. In fact, the test is much wider. To carry out the responsibilities that go with the holding of a licence includes whether or not liquor abuse issues are likely to arise. Thus it includes the object of the Act as set out in s 4. The Sheard test is not simply about how a business is likely to operate in the future. It is dependent on an assessment of the more generalised factors referred to in the previous paragraph.83 It includes how a licensee will deal with liquor abuse issues that may arise from the establishment of the business.
[195] Further, as confirmed by the High Court in Lower Hutt Liquormart Limited v Shady Lady Lighting Limited84 the vulnerability of an area raises the threshold of suitability.
[196] The vulnerability of the area is not disputed, and in the Authority’s opinion, nor could it be. The evidence for the Medical Officer of Health shows not only that Aro Valley is a vulnerable community, but the area is second in the city for alcohol-related hospital attendances for wholly residential areas, after the Mt Cook-Wallace Street
81 Re Venus NZ Ltd [2015] NZHC 1377, [2015] NZAR 1315 at [20] 82 Nishchay’s Enterprises Limited [2013] NZARLA PH 837 at [54] 83 i.e. the character and reputation of the applicant, its previous operation of premises, its proposals as to how the premises will operate, its honesty, its previous convictions, matters raised in reports from reporting agencies and whether the grant of the licence will result in the reduction or an increase in liquor abuse 84 Lower Hutt Liquormart Limited v Shady Lady Lighting Limited [2018] NZHC 3100 at [65] 32 area. The evidence of Ms Boston is that the area is an area of significant deprivation and that the prevalence for hazardous consumption for those aged 15-24 years old is above the national average.
[197] The evidence of the objectors is compelling. This evidence is graphic in its description of the lived experience of the residents of Aro Valley. This is not just the case for those who gave evidence before the DLC but is a feature of all 55 written objections which corroborate each other’s experiences. It defies belief that Mr Hira did not share this understanding of the extent of the vulnerability of Aro Valley.
[198] Considering this evidence of vulnerability, the threshold for suitability for an applicant in the Aro Valley is correspondingly high.
[199] The evidence of how Patels is likely to operate in the future is vague in several respects and Mr Hira’s evidence as to how Patels will safely and responsibly sell alcohol in the environment of Aro Valley is scant. In large part Patels appears to suggest it will simply do what it has done in the grocery store.
[200] The concern raised in reports from reporting agencies that the grant of the licence will likely result in an increase in liquor abuse is a very real one which the DLC rightly recognised. Mr Hira’s response that another outlet would simply provide another option for people to purchase their alcohol and that hospital statistics can be addressed by not selling in excessive quantities or by not selling to those to whom the law prohibits the sale of alcohol, is frankly naïve given the degree of vulnerability of the community.
[201] Similarly, Mr Hira’s submission that the store can help contribute to safe and responsible drinking through its pricing and the targeting of premium customers, while still selling RTDs and shots, is not credible. In a vulnerable community, policies that merely repeat what is already in the Act (namely not to serve intoxicated persons or minors) pays lip service to the object of the Act.
[202] As the Authority has previously recognised,85 the branding of bags will provide a benefit in linking ARH to the premises in some situations86 but the efficacy of a branded bag condition is not a quick fix and the information garnered from such a condition is only likely to be cogent in limited circumstances.
[203] Against this, the DLC said it ‘was troubled’ throughout the hearing by what it saw as a discrepancy between the claimed experience and intentions of the applicant and the manner in which the application was presented and discussed before it. Notably, the DLC was concerned that Mr Hira refused to ‘concede in any way’ that the opening of the proposed bottle store might lead to the increased consumption of alcohol in Aro Valley, particularly spirit-based alcoholic drinks, and that the grant of the application might as a consequence lead to an increase in ARH.87 Instead, the DLC said that Mr Hira ‘steadfastly asserted’ that there would be no increase in consumption and all that would happen would be that the effect of the proposed premises would be to split the market rather than to grow it.88 This assertion, the DLC said, reflected no credit on the application, but instead provided some foundation for a negative appraisal of the suitability of the applicant.
85 Palmer v Lion Liquor Retail Ltd [2017] NZARLA 170 86 e.g. where a person is who found to be consuming alcohol from a branded bag, or where alcohol hidden for the purpose of side-loading is found in a branded bag 87 DLC decision at [98] 88 DLC decision at [98] 33
[204] The Authority does not consider that this statement by the DLC can properly be portrayed as the DLC discrediting Mr Hira’s views and knowledge about drinking patterns in Aro Valley or that an additional licence would not lead to an increase in harm. The DLC simply did not find this assertion to be credible. The Authority considers that this is a conclusion that was open to the DLC and the weight to put to it is not a matter which the Authority can displace: the weight the DLC gives to this being within its discretion as decision-maker
[205] The DLC was also of the view that Mr Hira attempted to minimise the possibility that the premises might attract more people, particularly students, into Aro Valley to purchase alcohol suggesting that students would take another route into town. As explained by the DLC, the DLC found this difficult to accept given that there is at least one student residence that has a direct connecting path down Devon street to the corner of Aro Street where the premises will be located.89 Again, this is a conclusion open to the DLC given the evidence of the objectors about the student population within Aro Valley and Sgt Muir’s evidence about the premises being located within 500m of three large accommodation blocks including the Pukehinau Flats and there are several walkways allowing pedestrian access in the area.
[206] Mr Hira’s evidence about Patels’ intentions about the Thirsty Liquor franchise was at best equivocal. When asked whether the appellant was considering a franchise, Mr Hira replied “we’re not at this stage anyway”.90 Mr Hira also acknowledged that Mrs Patel probably did say to Sgt Muir that Patels was considering becoming a franchise when he conducted a site visit on 24 May 2017. Mr Hira said “Yeah, that’s what she probably said. I have asked her straight away and she probably just mentioned, she wasn’t sure about it”.91 Yet later, Mr Hira said that Mrs Patel had no discussion with Thirsty Liquor but “sometimes they probably have approached”.92
[207] In respect of Patels’ intentions to sell premium product to premium consumers, the only assurance Mr Hira gave was able to give was that the premises would not be stocking cheap spirits and certain brands of beer and RTDs. Mr Hira also ‘made it clear to the committee that as long as such sales were not forbidden by law, the applicant would not self-limit its ability to sell alcohol in those forms’ and that his approach was that if it is acceptable for other premises in the locality to sell those products, it would be acceptable for the applicant to do so.93 The applicant’s intentions as regard the product it intends to sell is an entirely relevant factor for a DLC to consider when assessing the suitability of an applicant.
[208] The DLC further found that Patels’ directors did not appear to have made more that “the most cursory attempt to consider who would be the customers of its new venture, and what their likely purchasing and consumption patterns might be”.94 The evidence is that Mr Hira was not able to describe the local clientele except in the most general of ways saying “… we have a mixed clientele, we’ve got young people, we’ve got older people, we’ve got middle aged people, all sort of people”.95
89 DLC decision at [99] 90 Transcript, unnumbered page 184 91 Transcript, unnumbered page 449 92 Transcript, unnumbered page 453 93 DLC decision at [103] 94 DLC decision at [104] 95 Transcript, unnumbered page 570 34
[209] The evidence of Ms Boston is also that in terms of consulting with the community, Mr Hira said that he had spoken to some business owners but that was all. Ms Boston’s evidence is that Mr Hira said that he did not see any need to communicate with people in the neighbourhood directly.96
[210] A petition was placed on the counter of the grocery store saying:
Dear Customer
We have recently applied in Council for opening NEW BOTTLE STORE in next door shop which currently a Fruit Shop. As we are extending our current shop so we will not be able to sell alcohol due to the space. Once the extension completed, we will have full range of Fruit & Vege also Indian Takeaway will be available.
Therefore, please sing for the application support:
Thank you
Manjula Patel
[211] The Authority is satisfied that this petition does not amount to a meaningful attempt to understand the views of the community. It is ambiguous at best and could be read as simply informing customers that the full range of fruit and vegetables will still be available following renovations, along with takeaways, but that alcohol would no longer be available in the grocery store. It is hard to know what those signing the petition were agreeing or on what conditions, those questions not having been clearly put to them.
[212] The Authority agrees with the DLC that Mr Hira has made little effort to research and understand the make-up of the community and how they might be impacted by alcohol or how his application might address those concerns. It was only when at the hearing before the DLC that Mr Hira indicated that the appellant would be willing to close the store when children are likely to walk by, particularly around 9.00am and 3.00pm weekdays to allay any concerns of the community. Further, it is only when appearing before the Authority that the proposed hours were modified to 9.00am to 9.00pm. Rather than this demonstrating a sensitivity toward the needs of the community, this demonstrates a failure to take steps to understand the concerns of the community in advance, and is ‘too little, too late’. This lack of engagement is a factor to which the DLC was properly entitled to have regard when assessing the applicant’s suitability to hold an off-licence.97
[213] The DLC found that aside from monitoring the outside of the store via security cameras, there was no acceptance of any ability on the part of the applicant to influence consumption decisions, or of any responsibility in that regard.98 Again, the Authority is satisfied that this finding was open to the DLC. In an exchange with Mr Hira, the DLC sought to understand whether the applicant would be prepared to accept a condition prohibiting the sale of single shots, and whether it was accepted that spirits that are “easily concealable, easily portable and easily consumed” bring with them a serious issue of new ARH coming into the area. In response, Mr Hira said simply that “Liquorland is not very far away”, and that ARH would not be increased
96 Boston, BoE at [32] 97 Lower Hutt Liquormart Limited v Shady Lady Lighting Limited [2018] NZHC 3100 at [65] 98 DLC decision at [107] 35 because “the student or young people who are into the spirit things if it’s not available here there probably getting it from somewhere else”.99
[214] As a result, the DLC found that Mr Hira provided them little confidence that he understood the responsibilities that go with holding a licence in the context of a vulnerable community. The DLC was rightly concerned with Mr Hira’s unsatisfactory response to expressions of concern about that vulnerability and about Mr Hira’s ‘blanket denial’ that any increase in ARH could result from the operation of the store.
[215] Moreover, the DLC said in the absence of the ability to examine Mrs Patel, they were not able to fully evaluate the applicant’s suitability to operate the premises.100 The Authority agrees that it was open to the DLC to consider it important that Mrs Patel address it about the operation of the premises for which she would be the primary operator. While Mr Hira said that he together with Mrs Patel are responsible for running the company and the store101 and share their views on business decisions, it is Mrs Patel who is the final decision-maker on business decisions, being the sole shareholder.102 By Mrs Patel not giving evidence, for the reasons articulated by Mr Sherriff for the objectors, the DLC was deprived of the ability to fully evaluate the application about how the primary operator of the premises and its sole shareholder intended for the premises to operate. The Authority finds no error on the part of the DLC in this regard.
[216] The Authority does not consider that because the appellant currently operates a grocery store on Aro Street it is suitable to hold a licence for a bottle store. A grocery store is qualitatively different from a bottle store and is quantitatively different in terms of the amount of alcohol it sells, particularly spirits. The Authority agrees that the DLC was right to question whether the appellant was a suitable operator to run premises involving the sale of alcohol other than wine, beer and cider. It would be remiss for a DLC to assume that because a licensee is suitable for operating one type of off-licence it is suitable to operate a different kind of off-licence (or even if it was the same kind of off-licence but of a different size, style of operation, or in a different location). Suitability depends on context.
[217] In any event, the DLC clearly said that it took into consideration that the applicant’s operation of its grocery store off-licence has not attracted any official concern from either the licensing inspectorate of the Police and that the licence has been renewed without opposition.103
[218] The Authority is satisfied that the DLC’s concerns about suitability were more fundamental than whether Mrs Patel and Mr Hira are hard-working, or able to operate a grocery store off-licence without issue. The Authority is satisfied that the Mr Hira was simply not able to satisfy the DLC that Patels is sufficiently suitable to run a bottle store offering a full range of alcoholic products in a highly vulnerable area and against the groundswell of opposition to it. The evidence is that Mr Hira is only in the premises on a part-time basis and the Authority agrees with counsel for the objectors that his evidence was vague. In the absence of any other evidence for the appellant, the appellant left itself exposed to having its application declined in the face of what can
99 Transcript, unnumbered pages 667-671 100 DLC decision at [109] 101 Transcript, unnumbered page 151 102 Transcript, unnumbered page 426 103 DLC decision at [109] 36 only be said to be significant and overwhelming evidence of the risk of ARH from reporting agencies and objectors.
[219] While the appellant acknowledged the need for managers to be on site at all times and investing in CCTV systems (which will be trained on Aro and Devon Streets and monitored to address any issues of breaches of the liquor ban), the evidence is also that Mr Hira saw his responsibilities around the sale of alcohol as limited saying under cross-examination that “… we follow all the rules that we’re not supposed to sell to any prohibited person and once people walking out of the shop that’s not my business, is it? They’re going to take home”.104 The Authority is satisfied that it was open to the DLC, after explaining to Mr Hira that alcohol is no ordinary commodity like fruit and vegetables,105 to be concerned about how well this was understood or taken on board by Mr Hira, let alone by Mrs Patel.
[220] While it is correct that the DLC said that that the appellant has appropriate systems, staff and training in place for the size of the premises, the DLC said it was only narrowly satisfied of this fact. The DLC remained concerned about the ‘probability of the responsibility for the premises being split with the neighbouring grocery store. As a result, the DLC said that had it granted the application it would have issued the licence subject to a specific condition that a duty manager was to be on the premises at all times when they are open. That the DLC felt it need to do this is itself of concern to the Authority given that this a requirement of s 214 of Act in any event. This along with discussions with staff every about serving alcohol, signage ID checks, assessing intoxication are the minimum one would expect an experienced operator to have in place.
[221] On balance, the Authority finds no fault on the part of the DLC’ in finding that it could not fully evaluate the applicant’s suitability to operate the proposed premises. The Authority considers, on balance, that it was open for the DLC to not be satisfied that the appellant was suitable to operate the licensed premises on the evidence before it, rather than on the basis of its suitability to operate the grocery store.
Days and hours of operation
[222] In terms of the hours sought, the DLC said that while within the maxima allowed for in the Act, if granted they would allow the applicant to sell alcohol from 8.00am to 10.00pm every day. It is clear that the DLC recognised that the applicant might voluntarily close at the end of the school day and that it might not trade during all those hours, but the DLC concluded that there was no clear ex-ante proposal from the applicant to reduce the licenced hours. Unlike in the case of a grocery store where the opening hour is 7.00am as a matter of convenience (so that the grocery store as a whole can trade from that opening hour), the DLC said the same does not apply to a bottle store.106 The Authority agrees.
[223] In respect of the closing hour, the DLC noted that a 10.00m closing hour, as criticised by the reporting agencies, was out of step with the hours granted to neighbouring off-licences which licences to sell until 9.00pm.
[224] As already noted, it was only when at the hearing before the DLC that Mr Hira indicated that the appellant would be willing to close the store when children are likely
104 Transcript, unnumbered page 600 105 Transcript, unnumbered page 600-601 106 DLC decision at [122] 37 to walk by, particularly around 9.00am and 3.00pm weekdays to allay any concerns of the community. Further, it is only when appearing before the Authority that the proposed hours were modified to 9.00am to 9.00pm.
[225] Considering the vulnerable nature of the community, the Authority again finds no fault in the DLC finding that the hours proposed, and maintained throughout the hearing of the DLC, were excessive.
[226] At its core, the risk assessment to be undertaken is not a comparison of the trading hour condition (or other conditions) imposed on other premises in the locality. In accepting that there was an evidential foundation allowing a link between the risk of ARH (caused by excessive or inappropriate consumption of alcohol) following the opening of its store, a reasonable system of control does not require a DLC to impose shorter hours to render an application acceptable where the applicant itself takes limited steps as to articulate how it might minimise harm. Patels’ efforts here can only be described as superficial. The Authority does not accept that any failure can be sheeted home to the DLC for not asking the applicant about shorter hours when this was squarely the subject of objections to which the appellant took few steps to address prior to the hearing.
Amenity and good order of the locality
[227] The Authority is not persuaded that the DLC made an error of law in stating that the applicant had failed to make a case for satisfying the criteria in s 105 about the effect of the issue of the licence on the amenity and good order of the locality and, as such, that the DLC effectively required the appellant to satisfy a negative proposition.
[228] The point is this. The application was made by Patels. Even though there is no onus of proof on the Patels given the evaluative nature of the decision-making function, if an applicant fails to address the criteria in s 105 and explain why it considers it has been satisfied especially in the face of significant opposition, then a DLC is not required to conduct its own inquires when having regard to those criteria. The Authority agrees with Mr Sherriff that while there is no onus of proof on an applicant, it does have an evidential burden and that it is for an applicant to put its best foot forward if it expects a DLC to favour the application over significant opposition which is itself supported by evidence.
[229] The Authority also considers that it was open to the DLC to assess the application against s 105(1)(h) rather than s 105(1)(i) because, in the DLC’s view licence application differed substantially from existing licences in the locality. Notably the proposed bottle store would introduce a new element of readily available RTDs and spirits (with a higher concentration of alcohol per volume and in some cases per dollar) into the locality compared to existing off-licence which are all restricted to sales of beer, wine and cider. In any event, having regard to the evidence from the reporting agencies and the objectors, the Authority is satisfied that not only that the amenity and good order of the locality would likely be reduced, to more than a minor extent, by the effects of the issue of the licence, but based on the evidence of the reporting agencies and the objectors the amenity and good order is already so badly affected that it is undesirable to grant the application.
[230] That the DLC described the community as a ”very pleasant part of the city with its mixture of historic buildings, interesting and individual businesses, and open spaces ..” is not at odds with the finding of the DLC. The DLC in describing the locality, was describing the area before it evaluated the evidence about the level of ARH in the 38 community. The Authority does not consider that more can be read into the DLC’s initial description of the area than this.
[231] Having regard to the matters in s 106(1) of the Act the DLC said that there was evidence of noise, nuisance and vandalism affecting the locality, albeit somewhat lessened by the liquor ban, but still present and attributable to an extent to the large population of younger people and the associated party or drinking culture. The DLC said:107
Granting the licence as applied for we think would increase the availability of, at a minimum, spirits, liqueurs and RTDs in the locality – notwithstanding Mr Hira’s suggestion that local alcohol consumption was at saturation level already, which seems to us improbable. We see nothing in the application that would prevent the increase of availability of those kinds of alcohol to the local population and, given the nature of that population, a likely associated increase in levels of noise, nuisance and vandalism.
[232] The DLC concluded in terms of the compatibility between the purposes for which land near the premises is used and the premises:108
We have come to a view that the pathways, parks, community centre, school and preschool are not a good mix with a bottle store at 102 Aro Street and refer to the evidence of the objectors in this regard.
We therefore consider that the issue of the licence sought would be likely to reduce the amenity and good order of the locality to more than a minor extent.
[233] The evidence is that there are 13 other stores selling alcohol within one kilometre of the proposed premises. Ten of these are grocery stores, two are bottle stores and one is a ‘higher end’ bottle store.109 The conclusion reached by the DLC is one that was open to it on the evidence.
[234] Nor does the Authority not accept the submission that s 106(1) ought to be read narrowly to refer to noise only emanating from the premises. As stated by Clark J in Lion Liquor, there is no requirement to link specific ARH to specific off-licences, or as Clark J put it ‘for the premises to be at the centre of the harm’.110 While Lion Liquor involved a renewal of an off-licence, the same reasoning is applicable to the initial grant of an off-licence. Again, as Clark J put it,111 what is required is an evidential foundation enabling a link to be drawn between a real risk of alcohol-related harm and the grant or renewal of a licence. That risk includes noise, nuisance and vandalism which on the evidence before the DLC, especially from objectors, is a very real issue in Aro Valley. The express wording of s 106(1) and s 105(1)(h) and (i) specifically refer to the amenity and good order of the locality. Where there is a real risk that a new licence will aggravate existing issues, then that is a matter for which the DLC ought to have regard.
Object of the Act
[235] In terms of the object of the Act, the DLC concluded:112
107 DLC decision at [117] 108 DLC decision at [119] - [120] 109 Boston, BoE at [16] 110 The Medical Officer of Health (Wellington Region) v Lion Liquor Retail Limited, above n 26 at [64] 111 The Medical Officer of Health (Wellington Region) v Lion Liquor Retail Limited, above n 26 at [67] 112 DLC decision at [125] – [126] 39
Looking now at the totality of the evidence and the weight to be given to the various elements we are guided by the object of the Act as set out in s 4 – that the sale, supply and consumption of alcohol be undertaken safely and responsibly and that the harm caused by the excessive or inappropriate consumption of alcohol be minimised. We have indicated that in our view neither of these limbs is satisfied by this application.
…
We could not, therefore, looking at all the relevant factors in s 105, find that the grant of the licence applied for would be consistent with the objects of the Act.
[236] As already stated the Authority is not satisfied that the DLC failed to have regard to the object of the Act and is satisfied that the DLC has sufficiently articulated its reasons throughout its decision. The decision clearly raises concerns about the suitability of the applicant, the proposed days and hours of operation, the amenity and good order of the locality and the issues raised in the reports of the reporting agencies, all of which the DLC said are interconnected. When cross-checked against the object of the Act, the DLC considered that the object of the Act could not be met. The Authority agrees.
Conclusion
[237] The Authority considers that this appeal is without merit.
[238] The Authority does not accept that the evidence is such that the DLC could have found that the application met the object of the Act. That the DLC was not satisfied that the applicant is suitable to hold an off-licence bottle store licence in the context of Aro Valley is a conclusion that was open to it despite the appellant currently holding a grocery off-licence.
[239] That Aro Valley is a vulnerable community is not disputed. That, however, understates the position. The prospective risk of ARH in the Aro Valley, as the evidence shows, is significant. The contention that the appellant can safely and responsibly sell alcohol notwithstanding this vulnerability is simply not established on the evidence.
[240] The Authority finds no reason to interfere with the decision of the DLC.
Result
[241] The appeal is dismissed.
[242] Pursuant to s 158 of the Act, the decision of the DLC is confirmed.
DATED at WELLINGTON this 8th day of May 2019
District Court Judge K D Kelly Chairperson Alcohol Regulatory and Licensing Authority 40
Appendix
Relevant provisions of the Sale and Supply of Alcohol Act 2012
[243] The purpose of the Act is set out in s 3:
(1) The purpose of Parts 1 to 3 and the schedules of this Act is, for the benefit of the community as a whole,—
(a) to put in place a new system of control over the sale and supply of alcohol, with the characteristics stated in subsection (2); and
(b) to reform more generally the law relating to the sale, supply, and consumption of alcohol so that its effect and administration help to achieve the object of this Act.
(2) The characteristics of the new system are that—
(a) it is reasonable; and
(b) its administration helps to achieve the object of this Act.
[244] Section 4 sets out the object of the Act:
(1) The object of this Act is that—
(a) the sale, supply, and consumption of alcohol should be undertaken safely and responsibly; and
(b) the harm caused by the excessive or inappropriate consumption of alcohol should be minimised.
(2) For the purposes of subsection (1), the harm caused by the excessive or inappropriate consumption of alcohol includes—
(a) any crime, damage, death, disease, disorderly behaviour, illness, or injury, directly or indirectly caused, or directly or indirectly contributed to, by the excessive or inappropriate consumption of alcohol; and
(b) any harm to society generally or the community, directly or indirectly caused, or directly or indirectly contributed to, by any crime, damage, death, disease, disorderly behaviour, illness, or injury of a kind described in paragraph (a).
[245] Section 105 provides the criteria to which a DLC must have regard when deciding whether to issue a licence:
(1) In deciding whether to issue a licence, the licensing authority or the licensing committee concerned must have regard to the following matters:
(a) the object of this Act:
(b) the suitability of the applicant:
(c) any relevant local alcohol policy:
(d) the days on which and the hours during which the applicant proposes to sell alcohol:
(e) the design and layout of any proposed premises: 41
(f) whether the applicant is engaged in, or proposes on the premises to engage in, the sale of goods other than alcohol, low-alcohol refreshments, non-alcoholic refreshments, and food, and if so, which goods:
(g) whether the applicant is engaged in, or proposes on the premises to engage in, the provision of services other than those directly related to the sale of alcohol, low-alcohol refreshments, non-alcoholic refreshments, and food, and if so, which services:
(h) whether (in its opinion) the amenity and good order of the locality would be likely to be reduced, to more than a minor extent, by the effects of the issue of the licence:
(i) whether (in its opinion) the amenity and good order of the locality are already so badly affected by the effects of the issue of existing licences that—
(i) they would be unlikely to be reduced further (or would be likely to be reduced further to only a minor extent) by the effects of the issue of the licence; but
(ii) it is nevertheless desirable not to issue any further licences:
(j) whether the applicant has appropriate systems, staff, and training to comply with the law:
(k) any matters dealt with in any report from the Police, an inspector, or a Medical Officer of Health made under section 103.
(2) The authority or committee must not take into account any prejudicial effect that the issue of the licence may have on the business conducted pursuant to any other licence.
[246] In addition, s 106(1) provides a ‘legislative aid, detailing the factors to which decision makers must have regard in forming an opinion as to the amenity and good order of the locality’:113
(1) In forming for the purposes of section 105(1)(h) an opinion on whether the amenity and good order of a locality would be likely to be reduced, by more than a minor extent, by the effects of the issue of a licence, the licensing authority or a licensing committee must have regard to—
(a) the following matters (as they relate to the locality):
(i) current, and possible future, noise levels:
(ii) current, and possible future, levels of nuisance and vandalism:
(iii) the number of premises for which licences of the kind concerned are already held; and
(b) the extent to which the following purposes are compatible:
(i) the purposes for which land near the premises concerned is used:
(ii) the purposes for which those premises will be used if the licence is issued.
113 per Lower Hutt Liquormart Ltd v Shady Lady Lighting [2018] NZHC 3100 [28 November 2018] at [66]