Lower Hutt Liquormart Ltd v Shady Lady Lighting Ltd
| Jurisdiction | New Zealand |
| Judge | Churchman J |
| Judgment Date | 28 November 2018 |
| Neutral Citation | [2018] NZHC 3100 |
| Docket Number | CIV-2018-485-494 |
| Court | High Court |
| Date | 28 November 2018 |
CIV-2018-485-494
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
Liquor Licensing, Statutory Interpretation — challenge to reversal of decision to grant an off-licence — standard of proof to be applied to alcohol licensing matters — approach to s105 Sale and Supply of Alcohol Act 2012 (“SSAA”) (criteria for issue of licences)
J H Wiles for the Appellant
A G Sherriff and L E S Grey for the Respondent
JUDGMENT OF Churchman J
Situated on the edge of Lower Hutt's commercial district, Rutherford Street runs parallel to the Hutt River. The riverbank area, which plays host to a market on weekends, is popular with joggers and dogwalkers by day, but attracts a somewhat less salubrious crowd by night.
Lower Hutt Liquormart Limited (LHL), trading as Blackbull Liquor, applied for and was granted an off-licence at 1 Rutherford Street by the Hutt City District Licensing Committee (the DLC) under s 100 of the Sale and Supply of Alcohol Act 2012 (the Act). On appeal to the Alcohol Regulatory and Licensing Authority (the Authority), this decision was reversed.
LHL challenges the Authority's decision. Along with the respondents' cross-appeal, the following five principal issues arise:
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(a) Are the proposed premises within a vulnerable area?
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(b) Is the applicant a suitable person?
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(c) Is the amenity and good order of the locality likely to be reduced by more than a minor extent?
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(d) What are the legal tests to be applied to factual evidence and speculative evidence?
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(e) Is there a requirement to consider whether granting an application will benefit the community as a whole?
A further issue arises as to the standard of proof to be applied to alcohol licensing matters.
This judgment will first outline the statutory framework for the regulation of alcohol licences. The decisions of both the DLC and the Authority will next be briefly traversed, following which the grounds for this appeal will be set out, along with the principles governing such an appeal and the standard of proof required. The discussion will then address the issues raised by this appeal under the headings of vulnerability, suitability, amenity and good order, the legal tests for factual and speculative evidence, and benefit to the community as a whole.
The Act was implemented in response to a report by the Law Commission, Alcohol in our Lives: Curbing the Harm published in 2010 which followed on from a 2009 Law Commission report, Alcohol in our Lives: An Issues paper on the Reform of New Zealand's Liquor Laws. 1 The Legislature recognised excessive drinking and intoxication was contributing to New Zealand's crime rate, injury rate and road crash statistics and was affecting the nation's overall level of health. While it was
acknowledged that regulation alone would not turn New Zealand's excessive drinking culture around, it was said that: 2Legislative settings can, however, support a safe and responsible drinking culture through controls on the availability of alcohol, requirements for safe and responsible licensed premises, and the management of alcohol in public.
Included in the Act was a new purpose provision, no such section having been in the repealed Sale of Liquor Act 1989 (the 1989 Act). This section, which makes it plain that the Act is intended to reform the law and to introduce a new system of control of not only the sale and supply of alcohol but also of its consumption, provides as follows:
3 Purpose
(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.
Major changes were also introduced in the object section. Section 4(1) of the 1989 Act stated that its object was “to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse”. Whereas the 1989 Act was concerned to reduce liquor “abuse”, the concept of “harm” is central to the new Act and is very broadly defined. 3 The Act's two objects are as follows:
4 Object
(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).
Summarising both ss 3 and 4 of the Act, the Court of Appeal said: 4
[23] The new Sale and Supply of Alcohol Act signals a new community-oriented approach incorporating both purpose and object provisions. A key purpose of the Act is to put in place, for the benefit of the community as a whole, a new system of control over the sale and supply of alcohol. The characteristics of the new system are that it is reasonable and its administration helps to achieve the object of the Act.
[24] Section 4(1) provides that the object of the 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.
[25] Unlike s 35 of the Sale of Liquor Act, the list of criteria which must now be considered in applications for off-licences includes as the first criterion the object of the Act.
Section 105 of the Act sets out the criteria for consideration in respect of licences:
105 Criteria for issue of licences
(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:
(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.
As to the amenity and good order of the locality, s 106 sets out the matters to which regard must be had in reaching the opinion required by s 105(1)(h), relevantly providing as follows:
106 Considering effects of issue or renewal of licence on amenity and good order of locality
(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.
A hearing was held before the DLC on 20 October 2017. Letters of objection and reports, along with evidence by way of written brief and oral evidence, from the following people were considered:
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(a) Mr Sharma, for LHL;
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(b) Mr Mead, the Licensing Inspector for Hutt City Council;
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(c) Sergeant Benge, Alcohol Harm Reduction Officer, representing Wellington...
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