Christchurch Medical Officer of Health v J & G Vaudrey Ltd

JurisdictionNew Zealand
CourtHigh Court
JudgeGendall J
Judgment Date06 November 2015
Neutral Citation[2015] NZHC 2749
Docket NumberCIV-2015-409-000098
Date06 November 2015

[2015] NZHC 2749

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000098

BETWEEN
Christchurch Medical Officer Of Health
Appellant
and
J & G Vaudrey Limited
First Respondent
Bond Markets Limited
Second Respondent
Foodstuffs North Island Limited
First Interested Party
General Distributors Limited
Second Interested Party
Christchurch City Council (Licensing Inspectors)
Third Interested Party
Appearances:

C P Browne and R J Sussock for Christchurch Medical Officer of Health

I Thain for J & G Vaudrey Limited

M Couling for Bond Markets Limited

B Zagni for Foodstuffs North Island Limited A Braggins for General Distributors Limited

H McKenzie for Christchurch City Council (Licensing Inspectors)

Appeal against an Alcohol Regulatory and Licensing Authority decision upholding an appeal against conditions placed on licences by a District Licensing Committee in respect of single alcohol areas in supermarkets — s112 Sale and Supply of Alcohol Act 2012 (SSAA) (compulsory conditions relating to display and promotion of alcohol in single area in supermarkets and grocery stores) imposed a single-area condition which limited the display and promotion of alcohol to a certain area within the premises — Committee had excluded from one application a wine display cabinet at one end of the wine display shelves as being contrary to s112(1) SSAA (to limit … the exposure of shoppers … to displays and promotions of alcohol) — in a second application the Committee had imposed a condition that was a compromise between what the applicant had proposed and the concerns raised by submitters — meaning of s112(1) SSAA and definition of “have regard to”, “limit” and “so far as is reasonably practicable” — consideration of applicability of authorities dealing with conditions under the Sale of Liquor Act 1989 to the SSAA — whether there was jurisdiction to remit the decision for determination — whether the Committee could impose additional conditions relating to the manner of display, promotion or advertising of alcohol within the single alcohol area — whether the Committee was entitled to form a synthesis of or compromise between the submissions made — whether an application could be declined if there were no objections.

The issues were: whether the Court and the Authority had the power under s161(7) to remit the decision for determination if necessary; whether the Committee could only approve a single alcohol area that limited so far as reasonably practicable the exposure of shoppers to display, promotion and advertising of alcohol; whether the Committee could impose additional conditions relating to the manner of display, promotion or advertising of alcohol within the single alcohol area; whether the Committee was entitled to reach a conclusion, or form a view, which was a synthesis or compromise between submissions made; and whether an established breach of natural justice led to a successful appeal, or whether it simply required a merits-based assessment of the competing positions.

Held: The Court had jurisdiction under s161(7) to remit the decision. It was inherent in the concept of reversal of revoking or nullifying a decision under appeal. A natural corollary of this was that there was the power to refer back for rehearing should the appellate body consider that necessary (it would also ordinarily have power to hear further evidence on appeal). This conclusion applied as much to appeals to the Authority as it did to appeals to this Court.

The role of the relevant body on receipt of an application for licensing or re-licensing was an evaluative one, requiring the decision maker to make a merits-based determination on the application. The relevant body was fundamentally required to assess whether a licence ought to issue. In so doing, it had to:

  • a) consider any objections;

  • b) consider any opposition filed by the Police and the Medical Officer of Health;

  • c) have regard to the criteria stipulated in s105 SSAA (criteria for issue of licences) including the design and layout of the premises.

The relevant body finally had to cross-check whether the application was capable of meeting the object of the SSAA. It had to impose the conditions required by s116(2) (particular discretionary conditions, and other compulsory conditions: off-licences) and in the case of a supermarket or grocery store, the single area condition. It could impose further conditions in accordance with s116(1) and s117.

For the purpose of an off-licence application, the relevant body had to impose the conditions specified in s116(2) SSAA. In the case of an application for an off-licence which was also a supermarket or grocery store, the relevant body had to impose a single area condition if it granted a licence. That entailed an evaluative exercise requiring the relevant body to:

  • a) be satisfied that the proposed area was a single area;

  • b) be satisfied that the proposed area complied with s113(5)(b) SSAA; and

  • c) consider whether the proposed plan limited, so far as was reasonably practicable, limited the exposure of shoppers to displays and promotions of alcohol and advertisements for alcohol.

The role of the relevant body in relation to single area conditions was to describe an area which the authority considered best accorded with the purpose and object of the SSA, and the purpose more specifically stated in s112(1), together with the requirements as mandated in s113(5). It was not the applicant who had the final say in describing the area. There was nothing on the face of s113 to indicate that the relevant authority was limited to accepting or rejecting a plan put forward by the applicant. Section 113(1) made it clear that the role of the relevant body was active rather than limited to approval or rejection of an applicant's plan.

There was no ability under s112, s113 or s114 SSAA to impose general conditions. That power was under s117 SSAA. Sections 112-114 were limited to the imposition of a condition of one kind, the single area condition. The relevant body could impose any or all of the conditions stipulated in s116(1) SSAA.

In considering and describing a single alcohol area, the relevant body “must have regard to” s112(1), which stated that its purpose was to “limit (so far as is reasonably practicable) the exposure of shoppers in supermarkets … to displays and promotions of alcohol, and advertisements for alcohol”. The requirement “to have regard to” further supported the notion that, in considering a single area condition, the role of the relevant body was evaluative and required an assessment. It was not a black and white matter. Further, in the present case, the mandatory requirement in s113(1) to have regard to the purpose in s112(1) was fundamental to the making of a decision under s113 — it was the only matter to which the decision maker was expressly directed to have regard. While this did not preclude the relevant body having regard to other matters, the inclusion of a specific reference only to s112(1) elevated it to a critical consideration.

The standard of “so far as is reasonably practicable” was not absolute. It required all reasonable steps to be taken. The test depended on the context of the legislation and was primarily factually oriented. Inherent in the concept of “reasonably practicable” was the notion of proportionality; the benefit to be obtained had to be weighed against the sacrifices obtained in securing the benefit. The obligation on the relevant body in relation to the single area condition was to ensure that the condition limited the exposure of shoppers to alcohol. This required a factual assessment of all relevant circumstances, including the size and layout of the supermarket. It then had to ensure the objective was proportionate and reasonable when weighed against the sacrifices to be made in securing it. The role to engage in a merits based consideration did not disappear or become diminished, simply because there was no objection to an application and it was unopposed.

The word “limit” was not capable of being interpreted as including a limitation so extensive that nothing remained.

The ability to impose conditions under the SSAA was different to that under the Sale of Liquor Act 1989. The Authority should not have applied the 1989 Act's principles when considering conditions. Any conditions imposed had to be reasonable and accord with the purpose and object of the SSAA. The Authority had not applied the correct legal test to the condition deleting the single display cabinet as it had applied the authorities relating to conditions under the predecessor regime unquestioningly. It was not possible to be satisfied that it was correct to delete the condition.

There was no breach of natural justice in describing an alcohol area which was not that proposed by the applicant (whether it was a synthesis or compromise of other proposals or submission was irrelevant). The opportunity to be heard and respond has been furnished. Dissatisfaction with outcome was then best ventilated through the appeal process. Where the relevant body sought to depart from one of the plans put forward by an applicant, an objector or an opposing party, and the relevant body was of the view it has insufficient evidence to form a comprehensive view, fairness might demand that it actively seek that further information. The prime concern was to ensure that any decision was founded on sufficient evidence.

The process of the Authority had been incorrect because it proceeded on a fundamental misapprehension of the SSAA. It was appropriate to quash the decision and refer it back to the Authority for reconsideration.

Appeal was allowed.

JUDGMENT OF Gendall J

Table of Contents

Para No

PART I: OVERVIEW, DECISION APPEALED, ISSUES AND SUMMARY OF FINDINGS

Overview

[1]

The Authority allows the appeals

[7]

Issues for resolution on appeal

[12]

...

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