Roles and responsibilities
54. Delegation to LLA secretary
Supported. This allows the LLA secretary to undertake certain routine formal tasks and powers on delegated authority, in the same way that inspectors act on the delegated authority of the LLA.
56. Functions of DLAs, etc.
Delegation of unopposed applications already covered under each licence type. Supported.
Public right of objection
57. Procedure in relation to objections [SOL 106]
At present the legislation requires a hearing to be held. In fact, where the LLA considers that the objection is based on grounds outside the scope of the Act, it already does ignore it and decides the matter on the papers. Although we do not object to the change, this skirts the problem.
The problem is that most matters on which neighbours and other community members wish to object are considered outside the scope of the Act, because of the narrow criteria and conditions that the Authority may consider. Many objections relate to the impact on neighbouring community of licensed premises on a particular site. These are usually inadmissible because they relate to land use, which may only be considered in setting hours of trading. Otherwise they are already considered to have been considered in prior planning decisions. These are considered to be matters for planning. Yet few District Plans consider these issues, and in any case plan by zone, whereas the issue may relate to the particular site (or even the type of licensed premises proposed for the site).
The LLA has identified this gap between planning and licensing in its annual reports to Parliament in 1996 and 1997, but the proposed amendments do nothing to improve the matter.
Other impacts on neighbouring communities may be considered matters of management performance which cant be considered, but not until the first renewal date. For new licensees, including new licensees in existing premises, objectors are restricted to attacking the personal suitability of the applicant. They may be reluctant to do this, either because they do not know him or, in small communities, because they do.
We recommend that the Authority be allowed to take neighbouring land use into consideration as a general criteria, not just in setting hours. We further recommend that it be possible to set an additional licence condition(s) where this could satisfy an objection by local objectors or by statutory officers. See Recommended Amendments.
59. Order in respect of costs [SOL 108A]
Strongly object as anti-democratic. The public objection provision are already an unsatisfactory aspect of the Act. This power to award costs against objectors will greatly discourage objectors. Costs could be understood as possibly amounting to thousands of dollars, for example when licensee use lawyers to take text cases through the courts. Yet allowing community members a say in regulatory decisions that affect them is not only fair and democratic, it is considered by regulatory theorists to contributes to successful decision making. In addition, cost effective monitoring of licensed premises relies on the goodwill of local communities. [The deterrent effect the power to award costs has been identified as a concern under the Resource Management Act; a similar power under this Act could greatly reduce reasonable and productive community control over risks associated with licensed premises.)
We acknowledge frustration and unnecessary expense to LLA and councils when objectors sometimes fail to appear at a hearing called because of their objection. However, the effect of 108A(2) could be achieved with a $200 fine.
60. Part 5A [SOL 114A-h)
These changes would devolve all decisions about licences and managers certificates to the local level, for those DLAs that wish it and are considered sufficiently qualified and resourced. The criteria and revocation provisions are well written. But if things go wrong, the right of appeal to the High Court under S.73 (SOL 138 1A) would undermine this and could make it extremely difficult for the Authority to take back responsibility.
Accreditation is opposed on two grounds.
This change is unnecessary. Our research shows that two tier system is working well, if too slowly. The Bill proposes changes to reporting and delegates unopposed decisions, which would greatly speed the system and are supported (S.11 and S.28),..
Asked in 1995 about passing licensing to local level, local officers opposed full devolution, although they supported unopposed licences being handled locally. They expressed concern that the decisions of inspectors, secretaries or councillors would be influenced by personal and business relationships in small face to face communities (Hill & Stewart 1996). This concern about political influences was also expressed to the Laking review in 1986, particularly in relation to smaller localities.
Regulatory capture of this kind is a major concern in the international research literature on the regulation of business activities.
As well as local pressures not to rock the boat, enforcement decisions by small councils may be influenced by cost consideration; for example, with sanctions appealed to the court.
The removal of controversial decisions (opposed applications) and sanctions to a neutral decision maker at the national level is a good mechanism for averting these possibilities. See also Clause 73 below.