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Whariki

What the Bill proposes

(SOLA S. 9, S.31, S.76, S.9(e), repealed; C.59, New section 108A, LLA annual reports 1996, 1997)

• Public notification of licence application on the site, as well in newspapers
• Repeals clauses requiring planning consent as prerequisite for a liquor licence (S.9(e))
• Empowering LLA to award costs against any party
• Omits any inclusion of LLA recommendations to Parliament on

• the 'gap' between planning and licensing
• its current inability to respond reasonable concerns of local communities

Alcohol & Public Health Research Unit

• Supports site notices, including for special licences required to be publicly notified
• Opposes repealing the requirement for prior planning consent
• Opposes awarding costs as likely to discourage community involvement
• Supports recommendations in the 1996 and 1997 reports of the Liquor Licensing Authority
• Recommends changes of licence criteria and conditions, to increase ‘responsiveness’ to local situations and concerns
• Recommends ‘neighbouring land use’ be considered as a general criteria, not just in setting hours of trading.

Site notices

The requirement for licence applications to be publicly notified on the site as well as in the newspaper is supported. An apparent anomaly in the Bill is that site notices may now be required for special licence applications, should the DLA think it appropriate, but in this case newspaper notices have been omitted. Special licences are granted for many small events, but also for large public events like wine and food festivals, and for occasions on which licensed venues and clubs wish to extend their usual hours for a particular occasion.

 

Liquor Licensing Authority recommendations omitted

It is somewhat surprising that recommendations made by the Liquor Licensing Authority in its annual reports to Parliament have not been picked up in the Bill.

 

In particular, the Authority has expressed concern that, under the Act as currently written, it find itself unable to respond to the concerns of local communities because the matters they typically raise do not fit the criteria it is allowed to consider and the conditions it is able to set in granting a licence. Many of concerns expressed may be seen as land use matters which are considered to have been covered by planning decisions and which the Authority may only consider in setting hours of trading. However, few District Plans have as yet addressed the sale of alcohol as a planning issue. In addition, planning is by zone whereas objections often relate to a particular site, adnt the impact a particular type of licensed premises on that site is likely to have on the neighbouring community. Where one there was considered to be an overlap between town planning and liquor licensing, the LLA now considered there to be a 'gap'.

 

The power to regulate licensed premises hinges on the power to grant and cancel its liquor licence. Logically included in this should be the power to refuse a licence, and the Alcohol & Public Health Research unit supports Authority’s request to Parliament for a clear discretion to decline to grant a liquor licence when there are objections from a community that such premises would be inappropriate on that site.

A strong theme in submissions to the review that led to the present Act was the need for community control in the granting of licences. DLAs, however, embody state power, in a role closely prescribed by the Act, not community control. Research in 1995 on the local level of licensing indicated that public objection processes were not satisfactory (Hill & Stewart 1996). A review of the case law confirms this (Hill & Stewart 1998), and interviews with recent objectors have documented the experiences of those whose concerns fall into the gap between planning and licensing (Hill 1988).

Repeal of planning consent prerequisite opposed
(C.8 and S.9(e); C.31 and S.31)

The Bill proposes to repeal the section that makes planning consent a prerequisite for a liquor licence application. Rather than resolving the gap identified by the Authority, this would simply disconnect planning from licensing.

 

The consequences of such a change are hard to predict. One effect would be that a licence application not be rejected because of an invalid consent certificate (eg when Birkenhead Licensing Trust planned to turn a licensed restaurant into a sports bar, against widespread local objection).

Business people would be able to apply for planning consent and licence at same time; but if the planning consent encountered delays or was not obtained, the DLA’s and LLA’s time and money might well be wasted, as well as the applicant’s licence fee.

The current practice of the Authority is to respect any formal policies of Council likely to become part of the District Plan, which renewed every 10 years through slow processes of consultation. It would no wish to continue doing so, but if planning consent is no longer a prerequisite, this is likely to meet legal challenges. This means the Authority and DLAs may be even less able to respond to the reasonable concerns of neighbouring communities.

Licence criteria and conditions more ‘responsive’

The Alcohol & Public Health Research Unit recommends some minor changes to sections of the Act on licence criteria and conditions, which could allow the licensing system to respond more adequately to reasonable local concerns. These recommendations arising from a project investigating regulatory theories and their application to liquor licensing in New Zealand, which suggested various possible options which were commented on expert informants on aspects of the licensing system (Hill & Stewart 1998)

 

The changes recommended would mean that when a licence is opposed by local officers or public objectors, the Authority could

• consider neighbouring land use as a general criteria in granting the licence, not just in setting hours of trading;
• resolve the issue by attaching an additional condition to the licence which would then be legally enforceable. This could be proposed by the licensee himself, or by any party at the hearing and imposed by the Authority, as with other terms of the licence such as hours.

See ‘Responsive Regulation’ and recommended amendments to
licence criteria and conditions.

Awarding costs [C.59, New section 108A]

The Bill proposes a new section allowing the Authority at its discretion to order any party to pay costs and expenses to 1) any other party 2) the crown. Specific reference is made to any party that fails to attend a hearing or give adequate notice of withdrawal.

 

There is a similar provision in the Resource Management Act, which is of concern to community and environment groups because it is considered a deterrent to public objection and consequently anti-democratic in effect. Members of the public are less likely to exercise their right under the Act to express their concerns if they risk incurring the costs of the applicant, possibly including high costs of legal counsel.

In interviews with recent objectors, the costs of lodging an appeal to the High Court against a planning or licensing were said to be already beyond the budget of an ordinary person or neighbourhood group. Formal planning and licensing hearings are often held at some distance to objecting residents in work hours and objectors spoke of them as ‘nerve-racking’ and ‘bamboozling’. Statutory officers have expressed understandable frustration that people who put in written objections do not turn up at a hearing. (Conversely, APHRU has also been told of instances of not informing objectors of planning or licensing hearings.).

It is suggested that a fine of $200 is likely to be sufficient to overcome the problem of non-attendance by objecting members of neighbouring communities.

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