Utikere v I S Dhillon and Sons Ltd

JurisdictionNew Zealand
JudgeHon Justice KÓS
Judgment Date25 February 2014
Neutral Citation[2014] NZHC 270
Docket NumberCIV 2013-454264
CourtHigh Court
Date25 February 2014
BETWEEN
Tangi Utikere
Appellant
and
I S Dhillon and Sons Limited
Respondent

[2014] NZHC 270

CIV 2013-454264

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

Appeal from a Alcohol Regulatory and Licensing Authority decision to grant the respondent an off-licence to operate a liquor store in Palmerston North — objectors concerned the grant would lead to increased alcohol abuse and related crime and argued that there were sufficient off-licences in the area — application had not been opposed by the Police — whether the Authority erred in dismissing as irrelevant and beyond scope of objection, matters under s35(1)(b) Sale of Liquor Act 1989 (“SLA”) (days and hours of operation) and s35(1)(a) SLA (suitability of the applicant) — whether the Authority erred by holding there was no causal nexus between the establishment of a bottle store and the perceived adverse social effects.

Counsel:

J Maassen for Appellant

A G Sherriff for Respondent

M Conway for District Licensing Inspector

JUDGMENT OF THE Hon Justice KÓS

1

On 2 April 2013 the Alcohol Regulatory and Licensing Authority granted the respondent (DSL) an off-licence to operate a liquor store in Palmerston North. It is a distinctive feature of the application that although it attracted a number of objections from local residents, neither the police nor the District Licensing Inspector opposed the grant.

2

The appellant, Mr Utikere, was one of the objectors. He is a Palmerston North city councillor. The licensed premises would lie within his ward. He now appeals the decision of the Authority. Appeals against grant of a liquor licence are confined to points of law. 1

Background
3

DSL wishes to open a new liquor store under the “Big Barrel” franchise brand. It already operates three other Big Barrel off-licences in other areas of Palmerston North. DSL's shareholders operate a fourth store in Feilding through a

different company. The proposed site of the new store is at the corner of Botanical Road and Tremaine Avenue, on the border between the suburbs of Takaro and Highbury. DSL has plans to construct new premises on this site if the licence is granted. 2
4

DSL was incorporated in March 2008 and began trading later that year. Its directors and shareholders are brothers Baldeep and Bhupinder Dhillon. The franchisors of the Big Barrel Group are their cousins Palwinder and Avtar Singh. Apart from one infraction, DSL has a clean record as operators of licensed premises. In July 2009 a member of staff at the one of DSL's Big Barrel stores sold liquor to a minor in a controlled purchase operation. As a consequence its licence was suspended for a period. In his brief of evidence Mr Baldeep Dhillon said:

Since that time we have gone through all the training procedures again. We have put in extra measures to avoid further compliance failure. In our stores, we have security on the doors from Thursday to Saturday. We run our own mystery shopper audit programme to test our employees to make sure they ask for ID to anyone who is looking below 25.

Between July 2009 and September 2012 five controlled purchase operations were conducted at DSL's Big Barrel stores. No sales were made to minors.

Community context
5

To the west of the site lies the suburb of Highbury. Mr Utikere's evidence included deprivation index statistics from the Ministry of Social Development. They show that large swathes of Highbury fall into the most deprived decile of New Zealand households. To the east is Takaro, a more mixed community. There are pockets that are less deprived, but on the whole, and particularly in the area closest to the proposed location, Takaro households fall around the seventh decile, meaning they are more deprived than the New Zealand average. There is a primary school within 400m of the proposed site and a further five primary or intermediate schools

within 1.6km. There are five off-licences and one on-licence within that 1.6km radius
Objections
6

By my count, 28 individual objections were received to DSL's application. There were more than 350 signatures on petitions lodged in opposition. A further four individual objections, and more than 150 petition signatures, were received out of time. Some of the petition signatures lacked sufficient detail or residential addresses to determine their validity or standing. Six individual objectors were disqualified because they lived too far away.

Reports
7

For the police Sergeant Ryan, the alcohol harm reduction officer for Palmerston North, responded to the application. The police noted public concern, but did not oppose the application. They did not appear at the hearing.

8

Mrs Kroll, the district licensing inspector, did not oppose the application. She commented that the respondent is a “hands on” operator. Its stores are “well run”. She noted a lack of evidence linking the granting of the licence with the harms objectors claimed would arise.

9

The medical officer of health for the MidCentral District Health Board made no comment on the application.

Statutory scheme
10

DSL's application was one made under the SL Act. The Act is being repealed gradually as the Sale and Supply of Alcohol Act 2012 comes into force. 3 The new SSA Act permits a broader range of considerations to be the subject of objection. Apart from the fact that this has occurred, and what it tells us about s 35 of the SL Act, it is irrelevant for present purposes. This application continues to be dealt with under the SL Act.

11

The SL Act has a very different philosophical premise from, say, the Resource Management Act 1991. 4 The SL Act places rather greater importance on reporting by the district licensing inspector and police. 5 The RM Act permits submissions on a reasonably liberal basis. The SL Act imposes a significant standing threshold in s 32(1). It requires an objector to have a “greater interest in the application than the public generally.” In practice that has normally meant residing within a one to two kilometre geographical radius. It is however accepted by the respondent that Mr Utikere, as a city councillor for the Takaro ward, would meet the enhanced interest requirement regardless of residential qualification.

12

The RM Act permits submissions in support of a consent application. The SL Act does not. Only objections may be filed under the SL Act. The RM Act permits submitters to make submissions on anything “about” a notified resource consent application, 6 or matters within the ambit of a proposed plan change. 7 The SL Act confines the matters objectors may submit on under ss 32(3) and 35(1). Objectors may produce evidence at the hearing. But that evidence must relate directly to the objection advanced. Objectors may not use evidence as a Trojan horse to evade the limits in ss 32(3) and 35(1).

13

The object of the SL Act is as follows:

4 Object of Act

  • (1) The object of this Act is 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, so far as that can be achieved by legislative means.

  • (2) The Licensing Authority, every District Licensing Agency, and any Court hearing any appeal against any decision of the Licensing Authority, shall exercise its jurisdiction, powers, and discretions under this Act in the manner that is most likely to promote the object of this Act.

14

Off-licences are one of four forms of liquor licence permitted by the SL Act. An off-licence authorises the holder to sell or deliver liquor on (or from) premises described in the licence to any other person, for consumption off the premises. Licences are issued to persons in relation to identified premises. They cannot be transferred from one person to another, or from one premises to another. Section 31 of the SL Act provides for the form of application, and its public notification. Although there was some argument before the Authority in relation to notification, that complaint was dismissed by the Authority and is not pursued here.

15

As I have said, there is a standing limitation on who may object. Section 32 of the SL Act provides both for the standing limitation, and constraint on the scope of objections. That provision provides:

32 Objections

  • (1) Any person who has a greater interest in the application than the public generally may object to the grant of an off-licence.

  • (2) Every objection shall be in writing, and shall be filed with the District Licensing Agency within 10 working days after the first publication of the public notice of the making of the application.

  • (3) No objection may be made in relation to any matter other than one specified in section 35(1) of this Act.

  • (4) In any case where-

    • (a) The application relates to any premises in respect of which an off-licence is presently in force; and

    • (b) The applicant seeks the same conditions as those presently applying to that licence,-

    • an objection may be made only in relation to the suitability of the applicant.

  • (5) The Secretary shall send a copy of every objection to the applicant.

16

Section 33 requires the licensing inspector and the police to inquire into every application. Inspectors must inquire, and they must report. In contrast, the police must inquire, but need only report if they have any matters in opposition to the application. In this case, as we have seen, the police inquired, but reported only that they had no matters in opposition. They did not attend the hearing. As Mr Sherriff says, that is unusual, but not unprecedented. In the circumstances, it might have been better if they had attended. It is generally desirable that a police officer attends a hearing in case assistance is needed by the Authority. 8 Particularly where the application has caused public controversy.

17

If an application is not opposed by the inspector or the police, and if no compliant objections are...

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