J & C Vaudrey Ltd v Bond Markets Ltd v Foodstuffs North Island Ltd v Canterbury Medical Officer of Health v General Distributors Ltd v Christchurch City Council (Licensing Inspectors)

• Jurisdiction: New Zealand
• Judge: Brown J
• Judgment Date: 16 November 2016
• Neutral Citation: [2016] NZCA 539
• Docket Number: CA37/2016
• Court: Court of Appeal
• Date: 16 November 2016

Between

J & C Vaudrey Limitedj

First Appellant

Bond Markets Limited

Second Appellant

Foodstuffs North Island Limited

Third Appellant

and

Canterbury Medical Officer of Health

Respondent

General Distributors Ltd

First Interested Party

And

Christchurch City Council (Licensing Inspectors)

Second Interested Party

[2016] NZCA 539

Court:

Harrison, Miller and Brown JJ

CA37/2016

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against a High Court (“HC”) decision which found that the District Licensing Committee (“DLC”) or Alcohol Regulatory and Licensing Authority (“ARLA”) were required to describe a single alcohol area that complied with the mandatory requirements set out in s113(5) Sale and Supply of Alcohol Act 2012 (“SSAA”) — on approving the first appellant's off-license applications on the papers, the Canterbury District Licensing Committee (“CDLC”) had varied the proposed single alcohol area — with regard to the second appellant, the CDLC had imposed conditions — whether the direction in s113(1) SSAA (decision-maker must have regard to s112(1) when describing an alcohol area) merely gave guidance on the implementation of s113(5) SSAA (authority or committee must describe an alcohol area within the premises) — whether the DLC/ARLA could describe a single area materially different from that sought by the applicant — whether conditions could be imposed under s117 SSAA (other discretionary conditions) that had the effect of altering the single area imposed under s112 SSAA (compulsory conditions relating to display and promotion of alcohol in single area in supermarkets and grocery stores) or restricting the configuration or arrangement of that area — whether the ARLA or the HC were able to refer a matter on appeal back to the decision-maker below.

Counsel:

D J Goddard Qc and I J Thain for Appellants

C P Browne and R J Sussock for Respondent

A W Braggins and H E Philip for Firsterested Party

M N Zarifah for Second Interested Party

• A The appeal against the order of Gendall J allowing the appeal, quashing the decision of the ARLA and referring both applications back to the ARLA, is dismissed.

• B The questions of law are answered as follows:

Question 1: Does the direction in s 113(1) merely give guidance (echoing s 112(1)) on the implementation of the s 113(5) requirements or does it impose a discrete obligation?

Section 113(1) directs the decision-maker to give genuine attention and thought to the purpose stated in s 112(1) in describing the perimeter of the single area. The decision-maker must take into account the purpose of limiting so far as reasonably practicable the extent of shoppers' exposure to alcohol displays, promotions and advertisements in describing the alcohol area.

Question 2: Can the DLC/ARLA describe a single area materially different from that sought by the applicant?

• (i) the decision-maker cannot describe a single area different from that proposed by the applicant if the application is granted on the papers under s 202(1);

• (ii) the decision-maker can describe a single area which is a sub-area of the area proposed by the applicant provided that the applicant has a proper opportunity to be heard at a hearing with reference to the reduced area;

• (iii) the decision-maker cannot unilaterally describe a single area which is in a different location from that proposed by the applicant unless the applicant is properly consulted and agrees to that different single area; and

• (iv) the decision-maker must decline the application if, having undertaken the evaluative exercise described by Gendall J at [61(a)(i)–(iii)], the applicant's proposed single area is not acceptable to the decision-maker.

Question 3: Can conditions be imposed under s 117 that have the effect of altering the single area imposed under s 112, or restricting the configuration or arrangement of that area?

Save for the imposition of an interim condition under s 115(5), conditions may not be imposed under s 117 that have the effect of altering the single area imposed under s 112(2).

Question 4: Is the ARLA or the High Court able to refer a matter on appeal back to the decision-maker below?

Yes.

• C The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

Table of Contents
Introduction	[1]
Background	[2]
The CDLC decisions	[3]
The ARLA appeals	[6]
The High Court judgment	[8]
Issues for determination	[12]
Statutory framework	[14]
Legislative history	[14]
Purpose and object of the Act	[22]
Supermarkets and grocery stores	[26]
Single-area conditions	[30]
Question 1: Does the direction in s 113(1) merely give guidance (echoing s 112(1)) on the implementation of the s 113(5) requirements or does it impose a discrete obligation?
Submissions	[33]
Discussion	[35]
Application to the present appeals	[37]
Application to the present appeals	[46]
Question 2: Can the DLC/ARLA describe a single area materially different from that sought by the applicant?	[48]
Submissions	[48]
Discussion	[53]
Application to the present appeals	[59]
Question 3: Can conditions be imposed under s 117 that have the effect of altering the single area imposed under s 112, or restricting the configuration or arrangement of that area?	[62]
Submissions	[65]
Discussion	[68]
Question 4: Is the ARLA or the High Court able to refer a matter on appeal back to the decision-maker below?	[71]
Outcome	[78]

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Brown J)

Introduction

1 Off-licences for premises that are supermarkets or grocery stores are required by s 112(2) of the Sale and Supply of Alcohol Act 2012 (the Act) to contain a condition describing a single area within the premises for the display and promotion of alcohol (a single-area condition). Applications for such off-licences must include a floor plan of the premises showing the proposed single alcohol area for the display and promotion of alcohol. 1 The questions of law on this appeal focus on the powers of a district licensing committee (DLC) or the Alcohol Regulatory and Licensing Authority (ARLA) to impose single-area conditions varying an applicant's proposed alcohol area when issuing or renewing an off-licence.

Background

2 In 2014 the Christchurch District Licensing Committee (CDLC) considered applications for new off-licences by the first appellant, J & C Vaudrey Ltd (Vaudrey), for the South City New World supermarket (the Vaudrey application) and the second appellant, Bond Markets Ltd (Bond), for the Bishopdale New World supermarket (the Bond application). Each application contained the requisite floor plan and proposed permitted alcohol area.

The CDLC decisions

3 The Vaudrey application, which was neither objected to 2 nor the subject of any reports in opposition, 3 included within the proposed single alcohol area a display cabinet containing wine facing onto a thoroughfare which led to the checkouts and the exit of the premises. In granting the application for the off-licence on the papers,

the CDLC varied the proposed single alcohol area by deleting provision for the display cabinet, stating: 4

In my view that display if it remained would be in breach of the purpose of the single area as explained in s 112(1). I do not believe that requiring the removal of this display would be unreasonable. I have therefore decided that the single area available for the display and promotion of alcohol must exclude this display, and I have approved a new plan showing the single area which excludes this part of the display.

4 The Bond application was the subject of a public hearing. Although no objections were lodged to Bond's application, there were reports in opposition from the Christchurch City Council Licensing Inspector, the police and the Canterbury Medical Officer of Health (the Medical Officer) in relation to the single alcohol area proposed by Bond. Two different areas were suggested, one by the Licensing Inspector, the other by the Medical Officer with the police in support.

5 The licence granted by the CDLC rejected all three proposed areas. Instead it imposed a condition permitting an area substantially smaller than and partially outside the perimeter area proposed by Bond. The CDLC said: 5

Given the space constraints in this supermarket the Committee considers that a reasonable approach would be to balance the size of the supermarket to the size of the [single alcohol area], particularly if it allows in the Committee's view compliance with the Act.

The ARLA appeals

6 The appeals against these decisions were heard together by the ARLA. 6 The reporting agencies 7 did not resist the contention that each decision had contravened the rules of natural justice with the consequence that both appeals were allowed. 8 However, because the ARLA considered that it did not have the power to remit the matters back to the CDLC it proceeded to consider the licence applications itself.

7 The ARLA considered that the CDLC's role was confined to granting an off-licence solely by reference to the single alcohol area proposed in the application. 9 It could not propose to modify the area on its own initiative. Consequently, the ARLA reasoned that the application must be rejected if the single alcohol area proposed by the applicant was not acceptable to the CDLC. The ARLA considered that the CDLC's modifications to each application were unreasonable and accordingly granted the licences with single-area conditions in the terms proposed in each of the Vaudrey and Bond applications. 10

The High Court judgment

8 On appeal by the Medical Officer under s 162 of the Act, Gendall J quashed the ARLA decision and directed it to reconsider the appeals from the CDLC decisions. 11

9 ...