Christchurch Medical Officer of Health v J & G Vaudrey Ltd

• Jurisdiction: New Zealand
• Judge: Gendall J
• Judgment Date: 06 November 2015
• Neutral Citation: [2015] NZHC 2749
• Docket Number: CIV-2015-409-000098
• Court: High Court
• Date: 06 November 2015

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

[2015] NZHC 2749

CIV-2015-409-000098

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

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.

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)

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]
Summary of findings	[13]
PART II: THE FRAMEWORK FOR DETERMINATION
Appeal jurisdiction	[17]
The role of a DLC in relation to the single area conditions when licensing or relicensing	[25]
Statutory Interpretation	[25]
Scheme of the Act	[31]
External materials	[33]
PART III: RESOLVING THE INTERPRETATIVE DEADLOCK
Substantive obligations of the relevant body (the DLC and the Authority)	[53]
The general role of the relevant body upon receipt of an application	[53]
Powers of the relevant body in relation to a single area condition	[58]
Application issues related to Building Act and Resource Management Act certificates	[65]
What is meant by “have regard to” ?	[74]
What is meant by “limit” ?	[80]
What is meant by “so far as reasonably practicable” ?	[82]
The ability to refuse an application which is unopposed and not objected to	[89]
What is the breadth of the power to impose further discretionary conditions?	[93]
Natural justice	[106]
Conclusion	[122]
PART IV OUTCOME, ORDERS AND COSTS
Outcome	[123]
Orders	[125]
Costs	[126]

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

Overview

1 Following the passing of the Sale and Supply of Alcohol Act 2012 (the Act), applications for, or renewals of, alcohol licences fall to be determined in accordance with the provisions of the Act. Importantly, for present purposes, alcohol sales in a supermarket or grocery store are now circumscribed as to location. All licence applications and licence renewals for supermarkets and grocery stores must be subject to a single-area condition which limits the display and promotion of alcohol to a certain area or areas within the premises (up to a maximum of three sub-areas). This new compulsory condition for all supermarket and grocery store licences was introduced for the stated purpose set out in s 112(1) of the Act:

…to limit (so far as is reasonably practicable) the exposure of shoppers in supermarkets and grocery stores to displays and promotions of alcohol, and advertisements for alcohol.

2 Both the first respondent, J & G Vaudrey Limited (Vaudrey), and the second respondent, Bond Markets Limited (Bond), applied to the Christchurch District Licensing Committee (CDLC) for alcohol off-licenses for their respective supermarkets, South City New World (South City) and Bishopdale New World (Bishopdale). Vaudrey, as the owner and operator of South City, and Bond, as the owner and operator of Bishopdale, operate their supermarkets under franchise agreements with Foodstuffs South Island Limited (Foodstuffs).

3 The Vaudrey application was unopposed at the time of determination. The CDLC therefore proceeded to determine that application on the papers. However, in granting the application, it excluded from the application a wine display cabinet at one end of the wine display shelves, because it was considered to be in contravention of the purpose of such an area, as described in s 112(1) of the Act.

4 The Bond application was opposed. Following a hearing, at which several different options were discussed, the CDLC released its decision, imposing a single-area alcohol condition that was said to be a compromise between the proposal Bond had advanced and the concerns raised by the other submitters.

5 Both parties appealed to the Alcohol Regulatory and Licensing Authority (the Authority) against the respective decisions insofar as they related to the description of the single alcohol area. 1 The appeals were allowed. The appellant, the Christchurch Medical Officer of Health (the MOH), now appeals against the decisions of the Authority.

6 For the reasons that follow I have formed the view that the appeal must be allowed. The issues in contest here are outlined below at [12]. I summarise my findings at [13]. Part II of this judgment contains the framework against which this appeal must be determined. Part III outlines the detailed reasons underpinning the summary, with Part IV setting out the overall outcome, orders and addressing the issue of costs.

The Authority allows the appeals

7 The Authority allowed both appeals from the CLDC. It says it would have done so on the basis of natural justice alone. 2 The Authority was of the view that the CDLC breached the requirements of natural justice by making a decision which was not founded in evidence. The Authority found that, in coming up with its own proposal, the CDLC necessarily departed from all submitted proposals and this was wrong. 3

8 This was not dispositive of the case, however. The Authority formed the view that its only powers under s 158 of the Act were to confirm, modify, or reverse the decision under appeal. 4 It considered the only appropriate course was to modify the decision, which required an examination of the legislation bearing upon single alcohol areas. 5 The contest between the parties was set out by the Authority in this way:

[22] The supermarkets have argued that the effect of the sections is that provided the proposed Single Alcohol Area constitutes a single area and is not situated on the most direct pedestrian route between either the entrance of the premises or its general point of sale (on the one hand) and the main body of the premises (on the other hand), the alcohol area may be located anywhere in the premises and no conditions pertaining to its location or displays, promotions or advertisements may be imposed.

[23] The reporting agencies say that a DLC may impose such conditions as to the location, displays and promotions in a Single Alcohol Area as will enable compliance with the purpose of the sections, viz the limitation of the exposure of shoppers to displays, promotions and advertisements of alcohol (s 112(1)) and as will achieve the purpose of the Act (s 3) and its object (s 4). The Police have submitted “ the main body of the premises ” can mean any part of the main body of the premises.

9 In resolving this interpretative deadlock, the Authority systematically addressed the issues under various heads:

• (a) Section 112: section 112 of the Act (described in part at [1] above) explains the rationale underpinning ss 112–114 by seeking to limit alcohol exposure, by reducing exposure to displays, promotions and advertisements relating to alcohol, but only so far as is reasonable practicable. The only conditions which may be imposed under s 112 relate to the location of the single alcohol area and its composition. According to the Authority, there is nothing in ss 112–114 authorising the imposition of conditions not specifically mentioned in those sections. The discussion is concluded as follows:

  … If the interpretation of the reporting agencies [the Police, a District Licensing Inspector and the Medical Officer of Health] is correct, then, for example, instead of containing the specific prohibitions as to the location of Single Alcohol Areas in s 113(5) of the Act, the section would simply have prevented the location of Single Alcohol Areas in any place that contravened s 112(1) of the Act.

• (b) Section 113: though s 113(1) requires regard to be had to s 112(1) of the Act, “it does not go so far as to authorise conditions outside the specific provisions of the sections”. The section goes on to explain how a single alcohol area is to be described (it...