Drinksbiz April May 2022

LEGAL NOTES

Pervinder Kaur

Associate at Harkness Henry specialising in alcohol licensing and resource management law pervinder.kaur@harkness.co.nz harknesshenry.co.nz

All good in the ’hood? It’s important to understand how a locality can impact alcohol licensing applications, says alcohol licensing lawyer Pervinder Kaur… OVER MY last two columns, I’ve explained some of the criteria that decision-makers must take into account when assessing alcohol licence applications. Having discussed the suitability of the candidate and local alcohol policy as two of those, the next area of consideration is the “amenity and good order” of the locality and its relevance in the application. The legal test (s 105(1)(h)) requires a district licensing committee to form an opinion as to whether the amenity and good order of the locality “would be likely” to be reduced by “more than a minor extent” by the effects of the issue of the licence. Essentially, this looks at whether the granting of an alcohol licence in a particular place would have a negative impact on the area. This can include consideration of issues such as noise and vandalism, and may also factor in the number of other licensed premises in the area. It is therefore necessary to determine the extent of the locality, its character as a receiving environment, the likelihood of any potential adverse effects, and then finally, whether any likely effects reach the required threshold (more than minor). Understanding definitions

“Locality” is not defined in the Act. However, it is generally accepted that locality will be that area of land that is likely to be affected by the operation of the licence. How far “the locality” extends is a matter for factual determination in each case. The Act defines “amenity and good order” as the extent to which, and ways in 24 DRINKSBIZ APRIL / MAY 2022

which, the locality in which the premises concerned are situated is pleasant and agreeable. The expression is slightly different to that under s 2 of the Resource Management Act 1991 which defines “amenity values” as “those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic, coherence, and cultural and recreational attributes.”

This looks at whether the granting of an alcohol licence in a particular place would have a negative impact on the area. The Court of Appeal in Port Nelson Ltd v Commerce Commission [1996] 3 NZLR 554 has discussed the meaning of “likely” and held that the appropriate level is above mere possibility and is best expressed as real and substantial risk. This essentially means that the stated harm or risk of harm is a real and appreciable possibility that cannot be dismissed or ignored as being remote or fanciful. Whether the effects are “more than minor” depends on the present state of the receiving environment. The Authority has held that where the receiving environment is already a noisy area, then that must be taken into account when deciding whether the effects are acceptable.

What is considered

Section 105(1)(i) sets out the issues for consideration when deciding whether the issuing of a licence is likely to reduce the amenity and good order of a locality by more than a minor extent and, includes matters such as current and future levels of noise, nuisance, and vandalism. The Authority has also previously recognised that the proliferation of licensed premises is relevant to an assessment of amenity and good order. In Re Venus NZ Ltd [2015] NZHC 1377, Justice Heath said that the question of whether amenity and good order will not be materially reduced is one on which a judgment must be formed by the Authority on the facts of a specific case, as opposed to something that an applicant is required to prove on a balance of probabilities. Section 105(1)(h) and (i) of the Act both deal with the amenity and good order considerations and require the Authority or Committee to form an ‘opinion’. As Justice Heath noted in Re Venus, the need for a judicial body to form an independent opinion is conceptually different from a decision that is based on whether or not an applicant has established that a relevant fact has been proved. It is important to seek legal advice if your application is opposed on the amenity and good order of the locality ground, as there are many factors that require consideration under this criterion. While it is the applicant’s responsibility to put their “best foot forward” when they apply for an alcohol licence, they aren’t required to prove that operating their premises won’t adversely affect the locality’s amenity and good order.